INTERNATIONAL     LAW. 


THE    CASE 


PRIVATE  ARMED  BRIG  OF  WAR 

GEN.  ARMSTRONG, 

CONTAINING 

LETTERS  AND   DOCUMENTS   REFERRING  TO  THE  HISTORY 

OF  THE  CLAIM ;    BRIEF  OF  FACTS,  AND  AUTHORITIES 

CITED;    ARGUMENTS   OF   CHARLES   O'CONOR,  ESQ., 

HON.  P.  PHILLIPS,  AND  SAM  0.  REID,  JB.;    AND 

BRIEF  OF  THE  U.  S.  SOLICITOR 

BEFORE  THE  UNITED  STATES  COURT  OF  CLAIMS 

AT  WASHINGTON,  D.  0. 


THE   DECISION   OF  THE   COURT, 

AND 

AN    APPENDIX 

CONSISTING   OF 

8ECRETAEY  MONROE'S  LETTER  OF  INSTRUCTIONS  TO  PRIVATE  ARMED 

VESSELS;    THE  TREATY  WITH  PORTUGAL,  AND  THE 

AWARD    OF  LOUIS  NAPOLEON. 

REPORTED   AND   EDITED 

BY    SAM    C.   REID,   JK.. 

COUNSELLOR    AT    LAW. 


NEW    YORK: 
BANKS,    GOULD    &    CO.,   144    NASSAU    STREET. 

ALBANY:* 
GOULD,   BANKS  &  CO.,  475  BROADWAY. 

1857. 


OFFICIAL    REPORT 


OP 


THE     BATTLE     OF     FATAL, 

MADE    BY   CAPTAIN    REID  TO  MESSRS.  JENKINS  AND  HAVENS,  THE  AGENTS. 

FATAL,  4*&  October,  1814. 

WITH  infinite  regret  I  am  constrained  to  say  it  has  eventually 
fallen  to  my  lot  to  state  to  you  the  loss  and  total  destruction  of  the 
private  armed  brig  General  Armstrong,  late  under  my  command. 

We  sailed  from  Sandy  Hook  on  the  evening  of  the  9th  ult.,  and 
about  midnight  fell  in  close  aboard  of  a  razee  and  ship-of-the-line. 
They  pursued  till  next  day  noon,  when  they  thought  proper  to  give 
over  chase.  On  the  llth,  after  a  nine  hours'  chase,  boarded  the 
private  armed  schooner  Perry,  John  Colman,  six  days  from  Phila- 
delphia ;  had  thrown  over  all  his  guns.  On  the  following  day,  fell 
in  with  an  enemy's  gun  brig  ;  exchanged  a  few  shots  with,  and  left 
him.  On  the  24th,  boarded  a  Spanish  brig  and  schooner,  and  a 
Portuguese  ship,  all  from  the  Havana.  On  the  26th  following, 
came  to  in  Fayal  Roads,  for  the  purpose  of  filling  water  ;  called  on 
the  American  consul,  who  very  politely  ordered  our  water  imme- 
diately sent  off,  it  being  our  intention  to  proceed  to  sea  early  the 
next  day.  At  5,  P.M.,  I  went  on  board,  the  consul  and  some  other 
gentlemen  in  company.  I  asked  some  questions  concerning  enemy's 
cruisers,  and  was  told  there  had  been  none  at  these  islands  for  several 
weeks  ;  when  about  dusk,  while  we  were  conversing,  the  British  brig 
Carnation  suddenly  hove  in  sight,  close  under  the  N.E.  head  of  the 

5 


VI  OFFICIAL   REPORT   OF 

harbor,  within  gunshot  when  first  discovered.  The  idea  of  getting 
under  way  was  instantly  suggested ;  but  finding  the  enemy's  brig 
had  the  advantage  of  a  breeze,  and  but  little  wind  with  us,  it  was 
thought  doubtful  if  we  should  be  able  to  get  to  sea  without  hazard- 
ing an  action.  I  questioned  the  consul  to  know  if,  in  his  opinion, 
the  enemy  would  regard  the  neutrality  of  the  port  ?  He  gave  me 
to  understand  I  might  make  myself  perfectly  easy,  assuring  me,  at 
the  same  time,  they  would  never  molest  us  while  at  anchor.  But 
no  sooner  did  the  enemy's  brig  understand  from  the  pilot-boat  who 
we  were,  when  she  immediately  hauled  close  in,  and  let  go  her  anchor 
within  pistolshot  of  us.  At  the  same  moment,  the  Plantagenet  and 
frigate  Rota  hove  in  sight,  to  whem  the  Carnation  instantly  made 
signal,  and  a  constant  interchange  took  place  for  some  time.  The 
result  was,  the  Carnation  proceeded  to  throw  out  all  her  boats, 
despatched  one  on  board  the  commodore,  and  appeared  otherwise  to 
be  making  unusual  exertions.  From  these  circumstances  I  began 
to  suspect  their  real  intentions.  The  moon  was  near  its  full,  which 
enabled  us  to  observe  them  very  minutely  ;  and  I  now  determined 
to  haul  in  nearer  the  shore.  Accordingly,  after  clearing  for  action, 
we  got  under  way,  and  began  to  sweep  in.  The  moment  this  was 
observed  by  the  enemy's  brig,  she  instantly  cut  her  cable,  made  sail, 
and  despatched  four  boats  in  pursuit  of  us.  Being  now  about  8  P.M. 
as  soon  as  we  saw  the  boats  approaching  we  let  go  our  anchor,  got 
springs  on  our  cable,  and  prepared  to  receive  them.  I  hailed  them 
repeatedly  as  they  drew  near,  but  they  felt  no  inclination  to  reply. 
Sure  of  their  game,  they  only  pulled  up  with  the  greater  speed.  I 
observed  the  boats  were  well  manned,  and  apparently  as  well  armed  ; 
and,  as  soon  as  they  had  cleverly  got  alongside,  we  opened  our  fire, 
which  was  as  soon  returned  ;  but  meeting  with  rather  a  warmer 
reception  than  they  had  probably  been  aware  of,  they  soon  cried  out 
for  quarters,  and  hauled  off.  In  this  skirmish,  I  had  one  man  killed, 
and  my  first  lieutenant  wounded.  The  enemy's  loss  must  have  been 
upwards  of  twenty  killed  and  wounded. 
They  had  now  repaired  to  their  ships  to  prepare  for  a  more  for- 


THE   BATTLE  OF   FATAL.  Vll 

midable  attack.  We,  iii  the  interim,  having  taken  the  hint,  prepared 
to  haul  close  in  to  the  beach,  where  we  moored  head  and  stern 
within  half  pistolshot  of  the  castle.  This  done,  we  again  prepared, 
in  the  best  possible  manner,  for  their  second  reception.  About 
9  P.M.  we  observed  the  enemy's  brig  towing  in  a  large  fleet  of  boats. 
They  soon  after  left  the  brig,  and  took  their  stations  in  three 
divisions,  under  the  covert  of  a  small  reef  of  rocks,  within  abont 
musketshot  of  us.  Here  they  continued  maneuvering  for  some 
time,  the  brig  still  keeping  under  way  to  act  with  the  boats,  should 
we  at  any  time  attempt  our  escape. 

The  shore  was  lined  with  the  inhabitants,  waiting  the  expected 
attack  ;  and  from  the  brightness  of  the  moon,  they  had  a  most 
favorable  view  of  the  scene.  The  governor,  with  most  of  the  first 
people  of  the  place,  stood  by  and  saw  the  whole  affair. 

At  length,  about  midnight,  we  observed  the  boats  in  motion  (our 
crew  having  laid  at  their  quarters  during  the  whole  of  this  interval.) 
They  came  on  in  one  direct  line,  keeping  in  close  order,  and  we 
plainly  counted  twelve  boats.  As  soon  as  they  came  within  proper 
distance  we  opened  our  fire,  which  was  warmly  returned  from  the 
enemy's  carronades  and  small  arms.  The  discharge  from  our  Long 
Tom  rather  staggered  them  ;  but  soon  recovering,  they  gave  three 
cheers,  and  came  on  most  spiritedly.  In  a  moment  they  succeeded 
in  gaining  our  bow  and  starboard  quarter,  and  the  word  was  Board. 
Our  great  guns  now  becoming  useless,  we  attacked  them  sword  in 
hand,  together  with  our  pikes,  pistols,  and  musketry,  from  which  our 
lads  poured  on  them  a  most  destructive  fire.  The  enemy  made  fre- 
quent and  repeated  attempts  to  gain  our  decks,  bat  were  repulsed  at 
all  times,  and  at  all  points,  with  the  greatest  slaughter.  About  the 
middle  of  the  action,  I  received  intelligence  of  the  death  of  my 
second  lieutenant ;  and  soon  after  of  the  third  lieutenant  being 
badly  wounded.  From  this  and  other  causes,  I  found  our  fire  had 
much  slackened  on  the  forecastle  ;  and,  fearful  of  the  event,  I 
instantly  rallied  the  whole  of  our  after  division,  who  had  been 
bravely  defending  and  now  had  succeeded  in  beating  the  boats  off 


OFFICIAL   REPOET   OF 

the  quarters.  They  gave  a  shout,  rushed  forward,  opened  a  fresh 
fire,  and  soon  after  decided  the  conflict,  which  terminated  in  the 
total  defeat  of  the  enemy,  and  the  loss  of  many  of  their  boats  :  two 
of  which,  belonging  to  the  Rota,  we  took  possession  of,  literally 
loaded  with  their  own  dead.  Seventeen  only  escaped  from  them 
both,  who  had  swam  to  the  shore.  In  another  boat  under  our 
quarter,  commanded  by  one  of  the  lieutenants  of  the  Plantagenet, 
all  were  killed  saving  four.  This  I  have  from  the  lieutenant  him- 
self, who  further  told  me  that  he  jumped  overboard  to  save  his  own 
life. 

The  duration  of  this  action  was  forty  minutes.  Our  deck  was 
now  found  in  much  confusion,  our  Long  Tom  dismounted,  and 
several  of  our  carriages  broken  ;  many  of  our  crew  having  left  the 
vessel,  and  others  disabled.  Under  these  circumstances,  however, 
we  succeeded  in  getting  Long  Tom  in  his  berth,  and  the  decks 
cleared  in  some  sort  for  a  fresh  action,  should  the  enemy  attack  us 
again  before  daylight.  About  3  A.  M.  I  received  a  message  from 
the  American  consul,  requesting  to  see  me  on  shore,  where  he 
informed 'me  the  governor  had  sent  a  note  to  Captain  Lloyd, 
begging  him  to  desist  from  further  hostilities.  To  which  Captain 
Lloyd  sent  for  answer,  that  he  was  now  determined  to  have  the 
privateer  at  the  risk  of  knocking  down  the  whole  town  ;  and  if  the 
governor  suffered  the  Americans  to  injure  the  privateer  in  any 
manner,  he  should  consider  the  place  an  enemy's  port,  and  treat  it 
accordingly.  Finding  this  to  be  the  case,  I  considered  all  hopes  of 
saving  our  vessel  to  be  at  an  end.  I,  therefore,  went  on  board,  and 
ordered  all  our  wounded  and  dead  to  be  taken  on  shore,  and  the 
crew  to  save  their  effects  as  fast  as  possible.  Soon  after  this  it 
became  daylight,  when  the  enemy's  brig  stood  close  in,  and  com- 
menced a  heavy  fire  on  us  with  all  her  force.  After  several  broad- 
sides she  hauled  off,  having  received  a  shot  in  her  hull,  her  rigging 
much  cut,  and  her  foretopmast  wounded.  She  soon  after  came 
in  again,  and  anchored  close  to  the  privateer.  I  then  ordered  the 
Armstrong  to  be  scuttled,  to  prevent  the  enemy  from  getting  her 


THE   BATTIfE   OF   FATAL.  il 

off.  She  was  soon  after  boarded  by  the  enemy's  boats,  and  set  on 
fire,  which  soon  completed  her  destruction. 

They  have  destroyed  a  number  of  houses  in  the  town,  and 
murdered  some  of  the  inhabitants. 

By  what  I  have  been  able  to  learn  from  the  British  consul  and 
officers  of  the  fleet,  it  appears  there  were  about  400  officers  and 
men  in  the  last  attack  by  the  boats,  of  which  120  were  killed  and 
about  130  wounded.  Captain  Lloyd,  I  am  told  by  the  British 
consul,  is  badly  wounded  in  the  leg  ;  a  jury  of  surgeons  had  been 
held,  who  gave  as  their  opinion  that  amputation  would  be  necessary 
to  insure  his  life.  The  fleet  has  remained  here  about  a  week,  during 
which  they  have  been  principally  employed  in  burying  their  dead, 
and  taking  care  of  their  wounded. 

Three  days  after  the  action,  they  were  joined  by  the  ship  Thais 
and  brig  Calypso  (two  sloops-of-war),  who  were  immediately  taken 
into  requisition  by  Captain  Lloyd,  to  take  home  the  wounded  men. 
The  Calypso  sailed  for  England,  with  part  of  the  wounded,  on  the 
2d  instant,  among  whom  was  the  first  lieutenant  of  the  Plantagenet. 
The  Thais  sails  this  evening,  with  the  remainder.  Captain  Lloyd's 
fleet  sailed  to-day,  supposed  for  the  West  Indies. 

The  loss,  on  our  part,  I  am  happy  to  say,  is  comparatively  trifling  ; 
two  killed  and  seven  wounded.  With  regard  to  my  officers,  in  general, 
I  feel  the  greatest  satisfaction  in  saying,  they  one  and  all  fought 
with  the  most  determined  bravery,  and  to  whom  I  feel  highly 
indebted  for  their  officer-like  conduct  during  the  short  period  we 
were  together  ;  their  exertions  and  bravery  deserved  a  better 
fate. 

It  gives  me  much  pleasure  to  announce  to  you  that  our  wounded 
are  all  in  a  fair  way  of  recovery,  through  the  unremitted  care  and 
attention  of  our  worthy  surgeon. 

Mr.  Dabney,  our  consul,  is  a  gentleman  possessing  every  feeling 
of  humanity,  and  to  whom  the  utmost  gratitude  is  due  from  us  for 
his  great  care  of  the  sick  and  wounded,  and  his  polite  attention  to 
my  officers  and  myself. 


X  THE   BATTLE  OF   FATAL. 

Mr.  Williams  was  a  most  deserving  and  promising  officer.  Hia 
country,  in  him,  has  lost  one  of  its  brightest  ornaments  ;  and  his 
death  must  be  sadly  lamented  by  all  who  knew  his  worth. 

Accompanied  with  this  you  will  find  a  copy  of  my  protest, 
together  with  copies  of  letters,  written  by  Mr.  Dabney  to  the 
governor  of  Fayal,  our  minister  at  Rio  Janeiro,  and  our  Secretary 
of  State.  These  letters  will  develop  more  fully  the  circumstances 
of  this  unfortunate  affair. 

We  expect  to  sail  to-morrow,  in  a  Portuguese  brig,  for  Amelia 
Island,  which  takes  the  whole  of  our  crew  ;  till  when,  I  remain, 
gentlemen,  your  very  obedient,  humble  servant, 

SAM  C.  REID. 
I  here  insert,  for  your  inspection,  a  list  of  the  killed  and  wounded  : 

KILLED. 

Mr.  Alexander  O.  Williams,  second  lieutenant,  by  a  musket-ball  in 

the  forehead  ;  died  instantly. 
Burton  Lloyd,  seaman,  by  a  musket-ball  through  the  heart ;  died 

instantly. 

WOUNDED. 

Frederick  A.  Worth,  first  lieutenant,  in  the  right  side. 
Robert  Johnson,  third  lieutenant,  in  the  left  knee. 
Bazilla  Hammond,  quarter-master,  in  the  left  arm. 
John  Finer,  seaman,  in  the  knee. 
William  Castle,  seaman,  in  the  arm. 
Nicholas  Scalsan,  seaman,  in  the  arm  and  leg. 
John  Harrison,  seaman,  in  the  hands  and  face,  by  the  explosion 
of  a  gun. 


LETTER   OF   JOHN    B.    DABNKY. 


LETTER  FROM  THE  U.  S.  CONSUL  AT  FATAL  TO  THE  SECRETARY  OF  STATB 

FATAL,  5th.  October,  1814 

SIR, — I  have  the  honor  to  state  to  you  that  a  most  outrageous 
violation  of  the  neutrality  of  this  port,  in  utter  contempt  of  the 
laws  of  civilized  nations,  has  recently  been  committed  here  by  the 
commanders  of  his  Britannic  majesty's  ships  Plantagenet,  Rota, 
and  Carnation,  against  the  American  private  armed  brig  General 
Armstrong,  Sam.  C.  Reid,  commander  ;  but  I  have  great  satisfac- 
tion in  being  able  to  add  that  this  occurrence  terminated  in  one  of 
the  most  brilliant  actions  on  the  part  of  Captain  Reid,  his  brave 
officers  and  crew,  that  can  be  found  on  naval  record. 

The  American  brig  came  to  anchor  in  this  port,  in  the  afternoon 
of  the  26th  of  September,  and  at  sunset  of  the  same  day  the  above- 
named  ships  suddenly  appeared  in  these  roads  ;  it  being  nearly  calm 
in  the  port,  it  was  rather  doubtful  if  the  privateer  could  escape  if 
she  got  under  way,  and,  relying  on  the  justice  and  good  faith  of  the 
British  captains,  it  was  deemed  most  prudent  to  remain  at  anchor. 
A  little  after  dusk,  Captain  Reid,  seeing  some  suspicious  movements 
on  the  part  of  the  British,  began  to  warp  his  vessel  close  under  the 
guns  of  the  castle,  and,  while  doing  so,  he  was,  at  about  eight 
o'clock,  P.M.,  approached  by  four  boats  from  the  ships,  filled  with 
armed  men.  After  hailing  them  repeatedly,  and  warning  them  to 
keep  off,  he  ordered  his  men  to  fire  on  them,  and  killed  and  wounded 
several  men.  The  boats  returned  the  fire,  and  killed  one  man,  and 
wounded  the  first  lieutenant  of  the  privateer,  and  returned  to  their 
ships,  and,  as  it  was  now  light  moonlight,  it  was  plainly  perceived 
from  the  brig,  as  well  as  from  the  shore,  that  a  formidable  attack 
was  premeditating.  Soon  after  midnight,  twelve  or  more  large 
boats,  crowded  with  men  from  the  ships,  and  armed  with  carronades, 
swivels,  and  blunderbusses,  small  arms,  &c.,  attacked  the  brig ;  a 
severe  contest  ensued,  which  lasted  about  forty  minutes,  and  ended 


Xii  THE  BATTLE  OF  FATAL. 

iu  the  total  defeat  and  partial  destruction  of  the  boats,  with  a  most 
unparalleled  carnage  on  the  part  of  the  British.  It  is  estimated  by 
good  judges  that  nearly  400  men  were  in  the  boats  when  the  attack 
commenced,  and  no  doubt  exists  in  the  minds  of  the  numerous  spec- 
tators of  the  scene,  that  more  than  half  of  them  were  killed  or 
wounded  ;  sereral  boats  were  destroyed  j  two  of  them  remained 
alongside  the  brig,  literally  loaded  with  their  own  dead.  From  these 
two  boats  only  seventeen  reached  the  shore  alive  ;  most  of  them 
were  severely  wounded.  The  whole  of  the  following  day  the  British 
were  occupied  in  burying  their  dead  ;  among  them  were  two  lieu- 
tenants and  one  midshipman  of  the  Rota  ;  the  first  lieutenant  of 
the  Plantagenet,  it  is  said,  cannot  survive  his  wounds,  and  many  of 
the  seamen  who  reached  their  ships  were  mortally  wounded,  and 
have  been  dying  daily.  The  British,  mortified  at  this  signal  and 
unexpected  defeat,  endeavor  to  conceal  the  extent  of  the  loss  ;  they 
admit,  however,  that  they  lost  in  killed,  and  who  have  died  since  the 
engagement,  upwards  of  120  of  the  flower  of  their  officers  and  men. 
The  captain  of  the  Rota  told  me  he  lost  10  men  from  his  ship.  Two 
days  after  this  affair  took  place,  the  British  sloops-of-war  Thais  and 
Calypso  came  into  port,  when  Captain  Lloyd  immediately  took  them 
into  requisition  to  carry  home  the  wounded  officers  and  seamen — 
they  have  sailed  for  England,  one  on  the  2d  and  the  other  on  the 
4th  instant ;  each  carried  25  badly  wounded.  Those  who  were 
slightly  wounded,  to  the  number,  as  I  am  informed,  of  about  30, 
remained  on  board  of  their  respective  ships,  and  sailed  last  evening 
for  Jamaica.  Strict  orders  were  given  that  sloops-of-war  should 
take  no  letters  whatever  to  England,  and  those  orders  were  rigidly 
adhered  to. 

In  face  of»  the  testimony  of  all  Fayal,  and  a  number  of 
respectable  strangers  who  happened  to  be  in  this  place  at  the 
moment,  the  British  commander  endeavors  to  throw  the  odium  of 
this  transaction  on  the  American  captain,  Reid,  alleging  that  he  sent 
the  boats  merely  to  reconnoitre  the  brig,  and  without  any  hostile 
intentions.  The  pilots  of  the  port  did  inform  them  of  the  privateer 


LETTER   OF   JOHN   B.    DABNEY. 

the  moment  they  entered  the  port.  To  reconnoitre  an  enemy's 
vessel  in  a  friendly  port,  at  night,  with  four  boats,  carrying  by  the 
best  accounts  120  men,  is  certainly  a  strange  proceeding  !  The  fact 
is,  they  expected,  as  the  brig  was  warping  in,  that  the  Americans 
would  not  be  prepared  to  receive  them,  and  they  had  hopes  of  carry- 
ing her  by  a  "coup  de  main."  If  anything  could  add  to  the 
baseness  of  this  transaction  on  the  part  of  the  British  commander,  it 
is  want  of  candor  openly  and  boldly  to  avow  the  facts.  In  vain  can 
he  expect  by  such  subterfuge  to  shield  himself  from  the  indignation 
of  the  world,  and  the  merited  resentment  of  his  own  government  and 
nation  for  thus  trampling  on  the  sovereignty  of  their  most  ancient 
and  faithful  ally  and  for  the  wanton  sacrifice  of  British  lives. 

On  the  part  of  the  Americans  the  loss  was  comparatively  nothing  ; 
two  killed  and  seven  slightly  wounded  ;  of  the  slain,  we  have  to 
lament  the  loss  of  the  second  Lieut.,  Mr.  Alexander  0.  Williams 
of  New  York,  a  brave  and  meritorious  officer. 

Among  the  wounded  are  Messrs.  Worth  and  Johnston,  first  and 
third  lieutenants  ;  Capt.  Reid  was  thus  deprived,  early  in  the 
action,  of  the  services  of  all  his  lieutenants  ;  but  his  cool  and 
intrepid  conduct  secured  him  the  victory. 

On  the  morning  of  the  27th  ult.,  one  of  the  British  ships  placed 
herself  near  the  shore,  and  commenced  a  heavy  cannonade  on  the 
privateer.  Finding  further  resistance  unavailing,  Capt.  Reid  ordered 
her  to  be  abandoned,  after  being  partially  destroyed,  to  prevent  her 
falling  into  the  hands  of  the  enemy,  who  soon  after  sent  their  boats 
and  set  her  on  fire. 

At  9  o'clock  in  the  evening  (soon  after  the  first  attack),  I  applied 
to  the  governor,  requesting  his  excellency  to  protect  the  privateer, 
either  by  force,  or  by  such  remonstrance  to  the  commander  of  the 
squadron  as  would  cause  him  to  desist  from  any  further  attempt. 
The  governor  indignant  at  what  had  passed,  but  feeling  himself 
totally  unable,  with  the  slender  means  he  possessed,  to  resist  such  a 
force,  took  the  part  of  remonstrating,  which  he  did  in  forcible  but 


XIV  THE  BATTLE   OF  FATAL. 

respectful  terms.  His  letter  to  Captain  Lloyd  had  no  other  effect 
than  to  produce  a  menacing  reply,  insulting  in  the  highest  degree. 
Nothing  can  exceed  the  indignation  of  the  public  authorities,  as 
well  as  of  all  ranks  and  description  of  persons  here,  at  this  unpro- 
voked enormity.  Such  was  the  rage  of  the  British  to  destroy  this 
vessel,  that  no  regard  was  paid  to  the  safety  of  the  town  ;  some  of 
the  inhabitants  were  wounded  and  a  number  of  the  houses  were 
much  damaged.  The  strongest  representations  on  this  subject  are 
prepared  by  the  governor  for  his  court. 

Since  this  affair  the  commander,  Lloyd,  threatened  to  send  on 
shore  an  armed  force  and  arrest  the  privateer's  crew,  saying  there 
were  many  Englishmen  among  them,  and  our  poor  fellows,  afraid  of 
his  vengeance,  have  fled  to  the  mountains  several  times  and  have 
been  harassed  extremely.  At  length  Captain  Lloyd,  fearful  of 
losing  more  men  if  he  put  his  threats  in  execution,  adopted  this 
stratagem  ;  he  addressed  an  official  letter  to  the  governor,  stating 
that  in  the  American  crew  were  two  men  who  deserted  from  his 
squadron  in  America,  and  as  they  were  guilty  of  high  treason,  he 
required  them  to  be  found  and  given  up.  Accordingly  a  force  was 
sent  into  the  country,  and  the  American  seamen  were  arrested  and 
brought  to  town,  and  as  they  could  not  designate  the  said  pretended 
deserters,  all  the  seamen  here  passed  an  examination  of  the  British 
officers,  but  no  such  persons  were  found  among  them.  I  was 
requested  by  the  governor  and  British  consul  to  attend  this  humili- 
ating examination,  as  was  also  Captain  Reid  ;  but  we  declined  to 
sanction  by  our  presence  any  such  proceedings. 

Captain  Reid  has  protested  against  the  British  commanders  of 
the  squadron  for  the  unwarrantable  destruction  of  his  vessel  in  a 
neutral  and  friendly  port,  as  also  against  the  government  of  .Portu- 
gal for  their  inability  to  protect  him. 

No  doubt  this  government  will  feel  themselves  bound  to  make 
ample  indemnification  to  the  owners,  officers,  and  crew  of  this  vessel, 
for  the  great  loss  they  have  severally  sustained. 


BRIEF   OF  FACTS.  XV 

I  shall  as  early  as  possible  transmit  a  statement  of  this  trans- 
action to  our  minister  at  Rio  Janeiro  for  this  government. 
I  have  the  honor  to  be,  with  great  respect,  sir,  your  most  obedient 

servant, 

JOHN  B.  DABNEY. 

To  the  Secretary  of  State  of   U.  S. 
Washington. 


BRIEF   OF   FACTS. 

•«;•••  -.-w>  *  V1-' 

The  claimants  in  this  case  assert  the  liability  of  the  government  of 
the  United  States  to  indemnify  them  for  the  losses  sustained  herein, 
upon  the  following  brief  of  facts: 

1st.  That  immediately  after  the  outrage  was  committed  by  the 
British  fleet  upon  the  American  brig,  the  Portuguese  government 
acknowledged  its  liability  to  the  United  States;  charged  the  viola- 
tion of  the  neutrality  of  the  port  upon  England;  and  demanded  an 
apology  and  indemnification  from  that  government,  which  was 
accorded.  (See  letter  from  the  Marquis  de  Aguiar  to  Mr.  Sump- 
ter,  and  enclosures  in  Sen.  Doc.  No.  14,  1st  ses.  29th  Cong.  p.  22 
et  ante  to  12.) 

2d.  That  every  administration  of  this  government,  from  Mr. 
Madison's  down  to  President  Taylor's,  has  admitted,  recognized, 
and  asserted  the  rights  of  the  claimants.  (See  letters  of  instruction 
from  the  Department  of  State  in  Sen.  Doc.  14,  ibid.)  That,  in 
1845,  under  the  administration  of  Mr.  Polk,  the  Portuguese  gov- 
ernment, for  the  first  time,  denied  its  liability,  and  refused  indemni- 
fication; and  the  prosecution  of  the  claim  was  abandoned  by  Mr. 
Upshur  on  the  ground  that  "  argument  and  importunity  had  been. 
exhausted,"  although  the  claimants'  rights  were  never  once  ques- 
tioned. (See  letter  of  Senor  De  Castro,  Sen.  Doc.  14,  p.  48,  and 
Mr.  Upshur  to  Mr.  Reid,  and  reply,  ibid:,  p.  54.)  That  afterwards, 
during  Mr.  Polk's  administration,  this  claim  was  brought  before 


^CVl  BRIEF   OF   FACTS. 

the  Senate  of  the  United  States,  by  a  resolution  calling  for  the  cor- 
respondence in  the  case,  and  the  Committee  on  Foreign  Relations 
recommended  its  reference  back  to  the  Department  of  State  for  fur- 
ther prosecution,  which  was  ordered. — (See  Mr.  Atherton's  report, 
May  19,  1846.) 

3d.  That,  under  the  administration  of  General  Taylor,  the  prose- 
cution of  this  and  other  claims  against  Portugal  was  renewed  by  a 
letter  of  instructions  from  Mr.  Clayton  to  Mr.  Hopkins. — (See  let- 
ter G,  p.  16,  in  Ex.  Doc.  Ho.  of  Reps.,  No.  53,  1st  sea.,  32d 
Cong.)  Finally,  on  the  8th  of  March,  1850,  Mr.  Clayton,  Secre- 
tary of  State,  was  instructed  by  the  President  to  make  a  peremp- 
tory demand  for  this  claim  through  Mr.  J.  B.  Clay,  our  charge  at 
Lisbon,  in  opposition  to  the  proposition  of  Portugal  to  refer  this 
and  other  claims  to  arbitration. — (See  letter  U.  p.  68,  V.  69,  Y. 
73,  in  Doc.  53,  ibid.) 

4th.  That  on  this  demand  being  made,  Portugal  offered  to  pay 
all  the  other  claims,  as  a  bonus,  if  the  United  States  would  refer 
the  Armstrong  claim  to  arbitration,  which  proposition  was  again 
rejected,  and  Mr.  Clay  demanded  his  passports,  and  left  for  France. 
—(See  letters  Y,  Z,  AAf  BB,  p.  73  to  81,  and  BBB,  112,  in  Doc. 
53,  ibid.) 

5th.  That  pending  this  negotiation  the  Portuguese  government 
made  further  admissions  of  its  liability  by  citing  the  acts  and 
acknowledgments  of  the  English  government. — (See  letter  I,  Count 
Tojal  to  Mr.  Hopkins,  p.  34,  and  letter  L,  to  Mr.  Clay,  p.  51,  and 
Mr.  Clay's  reply,  M,  p.  54,  ibid.)  That  Portugal  never  admitted 
that  she  had  abandoned  the  claim  made  on  England,  for  indemnifica- 
tion for  the  destruction  of  the  brig,  up  to  this  time. — (See  letter  of 
Mr.  Hopkins,  H,  p.  31,  ibid.)  That  Mr.  Clay  demanded  copies  of 
the  diplomatic  correspondence  between  Portugal  and  England  on 
this  subject,  which  was  refused. — (See  letter  K,  p.  46,  ibid.)  That, 
notwithstanding,  England  was  constantly  interfering  with  this  nego- 
tiation, and  furnishing  communications  and  arguments  to  Portugal. — 
(See  letters  N,  p.  57,  and  P,  p.  62,  ibid.) 


BRIEF   OF   FACTS.  XVU 

That  in  the  meantime,  the  Portuguese  minister  at  Washington 
opened  a  correspondence  with  the  Secretary  of  State,  strenuously 
urging  the  arbitration,  to  which  Mr.  Clayton  peremptorily  refused, 
under  instructions  from  the  President,  whose  intention  it  was  to  lay 
this  claim  before  Congress  for  its  final  action. — (See  letters  TT,  p. 
97;  No.  22,  p.  180,  No.  25,  p.  186,  and  No.  27,  p.  191,  TIL.  p. 
110,  YY.  p.  99,  TJ.  68,  ibid,  and  private  letter  of  Mr.  Clay- 
ton, F.) 

6th.  That  on  the  9th  July,  1850,  General  Taylor  died,  previous 
to  which  period  all  negotiations  had  ceased,  the  Portuguese  govern- 
ment having  received  the  ultimatum  of  the  President.  That  on  the 
accession  of  Mr.  Fillmore's  administration,  Mr.  Webster — only 
three  days  after  succeeding  Mr.  Clayton — agreed  with  Mr.  Figa- 
neiro  to  accept  the  bonus  of  the  payment  of  all  the  other  demands, 
and  arbitrate  the  Armstrong  case. — (See  Mr.  Clayton's  speeches, 
p.  5,  13,  and  It.)  Mr.  Clay  was  informed  of  this  acceptance,  and 
requested  to  return  to  Lisbon  to  complete  the  arrangement;  which, 
for  the  most  honorable  and  delicate  reasons,  he  declined. — (See  let- 
ter DD,  p.  83,  ibid.)  That  on  the  5th  September,  1851,  Mr.  Web- 
ster officially  communicated  to  the  Portuguese  minister  the  Presi- 
dent's acceptance  of  the  terms  to  arbitrate  this  claim. — (See  letter 
BBB,  p.  112,  ibid.) 

7th.  That  the  private  agreement  to  arbitrate  this  claim  was 
entered  into  without  the  advice,  information,  knowledge,  or  consent 
of  the  claimants,  reversing  the  opinion  of  the  previous  Executive, 
and  in  direct  violation  of  the  plighted  faith,  solemnly  asseverated 
to  Portugal,  that  it  would  never  consent  to  compromise  the  honor 
of  the  nation  or  the  rights  of  the  claimants. — (See  conclusion  of 
letter  H,  p.  33,  ibid.)  That  on  hearing  of  the  rumor  of  the  accept- 
ance through  the  newspapers,  the  agent  of  the  claimants  immedi- 
ately wrote  to  the  Secretary  of  the  State,  protesting  against  this 
course,  and  begged  to  have  the  matter  postponed  until  he  could 
arrive  in  Washington.  He  was  informed,  however,  that  it  was  toe 
late,  that  the  proposition  had  already  been  accepted,  and  the  fa« 


XV111  BRIEF   OF  FACTS. 

formally  announced  to  Portugal. — (See  letter  of  Mr.  Reid,  and  Mr. 
Webster's  reply,  p.  9  in  the  printed  speeches,  original  marked  A.) 
That  the  responsibility  was  hereby  fully  assumed  without  the  con- 
sent of  the  claimants,  and  the  act  became  established,  perfect  and 
complete.  That  the  said  convention  was  not  absolutely  drawn 
up  until  the  26th  of  February,  1851,  seven  months  after  the  verbal 
acceptance. — (See  letters  FP  and  GG,  p.  84,  in  House  Doc.  No. 
53.) 

8th.  That  this  treaty  or  convention  was  submitted  to  the  Senate, 
and  ratified  on  the  10th  March,  1851,  in  secret  session,  without 
any  possible  knowledge  or  information  of  the  nature  and  circum- 
stances under  which  said  convention  was  made. — (See  letter  GG. 
p.  84,  ibid.,  and  Sen.  Doc.  No.  7,  1st  Session  33d  Congress.) 

That  the  first  article  of  said  convention  declares  the  conditions 
under  which  said  treaty  was  made,  and  that  the  consideration  of  the 
bonus,  for  which  this  claim  was  agreed  to  be  arbitrated,  is  set  forth 
in  the  fourth  article  of  said  treaty. — (See  Treaty  in  Appendix.) 

That  said  treaty  is  imperfect  and  defective,  and  was  made  in  vio- 
lation of  all  principles  of  justice,  and  without  a  strict  regard  to 
the  protection  of  the  rights  of  the  claimants :  first,  because  said 
treaty,  under  the  second  article,  has  for  its  only  object  the  decision 
of  a  point  of  public  law,  which  is  not  expressed  or  set  forth  in 
such  a  manner  as  to  compel  the  finding  of  the  arbiter  to  be  con- 
fined to  any  particular  point  of  law  or  statement  of  facts  ;  second, 
because,  under  said  second  article,  it  is  provided  that  the  claim  only 
"  in  behalf  of  the  captain,  officers,  and  crew  of  said  privateer  should 
be  submitted  to  the  arbitrament,"  while  the  claim  in  behalf  of 
the  owners  of  said  brig  General  Armstrong,  is  wholly  disregarded, 
omitted,  and  unprovided  for,  under  said  convention,  consequently, 
the  claim  of  said  owners  was  never  submitted  to  arbitration  ;  third, 
because,  under  the  third  article  of  said  convention,  it  is  not  stipu- 
lated that  the  arbiter  shall  hear  and  decide  upon  the  law  and  the  facts 
which  shall  be  submitted  by  the  claimants  through  their  government, 
as  well  as  on  the  part  of  Portugal.  Fourth,  because,  by  the  third  arti- 


BKIEF   OF   FACTS.  XIX 

cle  of  said  treaty,  the  evidence  is  confined  to  the  correspondence  only, 
at  Lisbon,  which  has  passed  between  the  two  governments,  in  refer- 
ence to  said  claim  ;  and  the  protocol  drawn  up  by  Mr.  Webster,  in 
the  nature  of  instructions  as  to  the  mode  and  terms  of  submitting 
the  case  to  the  arbiter,  excluded  all  the  important  correspondence 
of  1814,  at  Rio  de  Janeiro,  between  the  Portuguese  and  British 
Ministers  ;  the  letter  of  admission  from  the  Portuguese  to  the 
American  Minister  ;  the  letter  of  the  British  Consul ;  Captain 
Reid's  protest,  and  other  documents  contained  in  Sen.  Doc.  14,  1st 
sess.  of  29th  Congress.— (See  HH,  p.  85  ;  KK,  p.  86  ;  and  LL, 
p.  87,  Doc.  53  ;  and  copy  of  Protocol,  marked  No.  1.) 

9th.  That  on  the  1th  July,  1851,  the  claimants,  by  their  agents, 
filed  at  the  Department  of  State  a  written  argument  ;  and  statement 
of  facts,  which  he  requested  to  be  sent  to  our  minister,  that  the 
claimants  might  be  properly  represented  before  the  arbiter,  but  he 
was  verbally  refused,  on  the  ground  that  the  terms  of  the  treaty  pre- 
cluded it. — (See  argument  submitted  to  the  Department  of  State  in 
the  Memorial,  p,  12.)  The  agent  afterwards  addressed  two  notes 
to  the  Secretary  of  State,  urging  this  request,  but  received  no 
answer. — (See  letters  B  and  C  to  Mr.  Webster.)  The  agent  then 
addressed  himself  to  the  President,  desired  to  be  sent  to  France 
with  the  papers  and  documents,  and  that  he  might  be  authorized  to 
present  the  case  of  the  claimants  through  Mr.  Rives,  the  American 
minister  at  Paris,  to  the  arbiter,  which  was  also  refused. — (See  let- 
ter from  Mr.  Crittenden,  acting  Secretary  of  State,  marked  D.) 

10th.  That  on  the  9th  of  June,  1851,  Mr.  Hadduck  concluded 
the  protocol,  and  sent  the  papers  to  Mr.  Rives  at  Paris. — (See  let- 
ter LL,  p.  87,  in  House  Doc.  No.  53  ;  letter  of  Mr.  Thomas, 
assistant  Secretary  of  State,  marked  No.  2.)  On  the  1st  Novem- 
ber, 1851,  the  President  of  France  accepted  the  office  of  arbiter. 
Subsequently,  Louis  Napoleon  became  "  Prince  President,"  and 
on  the  29th  November,  1852,  one  year  after  the  case  was  sub- 
mitted, Mr.  Rives  was  informed  that  a  decision  had  just  been 
rendered. — (See  Sen.  Doc.  No.  24,  2d  sess.  32d  Congress,  p.  2.) 


XX  BEIEF  OF  FACTS. 

That  on  the  10th  December,  1852,  Mr.  Rives  was  informed  by 
the  French  Minister  that  the  Emperor  had  deputed  him  to  deliver 
the  award  in  his  name,  and  that  said  award  was  delivered  the  next 
day  accordingly,  in  the  name  of  the  Emperor  of  France,  contrar} 
to  the  treaty  stipulation,  which  referred  the  case  to  the  President  of 
France.— (See  letter  of  Drouyn  De  L'Hnys,  p.  3,  ibid.,  and  Mr. 
Rives  to  Mr.  Everett,  p.  1,  ibid.) 

llth.  That  as  soon  as  the  award  of  the  Emperor  of  France  was 
made  pnblic,  the  claimants,  by  their  agent,  entered  a  solemn  pro- 
test against  its  acceptance  by  the  United  States  ;  (See  copy  of 
Protest,  letter  No,  3.)  but  was  informed  by  letter  from  Mr. 
Everett,  Secretary  of  State,  marked  jB,  dated  llth  February,  1853, 
that  "the  award  of  the  arbiter  in  this  case  must  be  considered 
as  decisive."  This  declaration  was  reiterated  in  Mr.  Marcy's  letter 
to  the  President,  in  Sen.  Doc.  No.  7,  1st  sess.  of  33d  Congress. 

12th.  That  said  award  does  not  comply  with  the  terms  of  the 
treaty  creating  the  arbitration,  because  it  does  not  decide  any 
point  of  public  law  involved  in  the  case. — (See  letters  of  Mr.  Hop- 
kins, H,  pp.  26  and  21.  Count  Tojal,  I,  p.  3t.  Mr.  Clay,  M,  p. 
56  and  Q,  p.  65,  in  House  Doc.  No.  53.)  That  the  statements 
.upon  which  said  award  is  founded  are  perverted  and  in  violent 
contradiction  of  the  facts  and  evidence.  That  said  award  was 
evidently  drawn  up  by  the  Portuguese  official,  as  it  is  in  the 
language  of  the  arguments  used,  and  is  in  the  form  of  the  execu- 
tive decrees  of  Portugal. — (See  p.  125,  ibid.) 

That  it  shows  on  its  face  that  the  information  obtained  in  regard 
to  the  facts  were  received  from  the  Portuguese  representative,  and 
that  be  was  evidently  permitted  a  hearing,  while  the  claimants  were 
in  no  manner  represented. 

13th.  That  the  reasons  assigned  in  said  award  are  totally  at 
variance  with  and  in  contradiction  of  themselves  :  1st  because  it 
charges  the  violation  of  the  neutrality  equally  on  the  part  of  both 
the  belligerents  ;  2d,  because  it  assigns  for  non-liability  the  weak- 
ness and  disability  of  the  island  of  Fayal,  to  afford  protection, 


BEIEF  OF  AUTHOEITIE8.  XXI 

while  it  alleges  that  Captain  Reid  did  not  apply  from  the  beginning 
for  intervention,  but  had  recourse  to  arms,  "  which  released  the  sove- 
reign of  the.  obligation  in  which  he  was  to  afford  protection  by  any 
other  means  than  that  of  pacific  intervention." — (See  award  in 
Appendix.) 

That  said  award  is  disrespectful  and  insulting  to  this  government, 
because  it  advances  among  other  reasons,  ^an  act  in  defence  of 
the  Portuguese  governor,  which  was  considered  reprehensible  at 
the  time,  and  in  conjunction  with  the  committal  of  an  act,  with  the 
permission  of  said  governor,  by  the  British  officers  against  the 
American  sailors,  which  had  been  justly  rebuked  by  Mr.  Clay  as 
insulting. — (See  letter  K.,  pp.  47  and  48,  ibid.) 

It  is  under  these  circumstances  the  claimants  ask  to  be  indemni- 
fied by  their  government  for  the  losses  sustained  and  claimed  in 
their  petition. 


BRIEF  OF  AUTHORITIES  CITED  ON  THE  PART  OF 
THE   CLAIMANTS. 

1.  Of  Jurisprudence  as  enlarged  by  legislative  authority,  with 
increased  power  of  establishing  justice.     Ordinary  'courts  of  law 
are  not  created  to  declare  or  enforce  justice  in  the  abstract,  or  jus- 
tice in  general.     See  note  A  to  De  Bode  vs.  Regina,  13  Queen's 
Bench  Rep.,  387.    Jackson  vs.  Bartholomew,  20  Johnson's  Rep.,  28, 
Story's  Eq.  Jur.,  §§  8,  9. 

2.  Whatever  leads  to  hostility  in  nemtral  territory,  as  well  as 
direct  hostility  between  belligerents,  is  forbidden  by  the  law  of 
nations.     Wildman's  International  Law,  2  vol.,  148.     Case  of  The 
Twee  Gebroeders,  3   Rob.   Rep.,  164.      The  Ann,  3d   Wheaton's 
Rep.,  435.     The  Mariana  Flora,  11  Wheaton,  p.  1. 

3.  The  loss  arising  out  of  the  violation  of  neutrality,  must  be 
made  good  by  the  neutral  government.     Case  of  The  Ann,  ibid. 
Kent's  Com.,  vol.  i.  p.  122.    Bynkershoeck,  b.  1,  c.  8.    De  Jure 


XXII  BEIEF  OF  AUTHORITIES. 

Maritime,  b.  1,  c.  1.  p.  13.  Flander's  Maritime  Law,  p.  45.  Case 
of  the  French  ship  Grange,  captured  by  the  English  in  the  Chesa- 
peake Bay.  Jefferson's  letter  to  Penaut,  3  vol.  Jeff,  works,  232. 
Opinions  of  Attorney  General,  vol.  i.,  p.  33.  Report  of  the  Com- 
mittee on  Foreign  Relations  of  the  U.  S.  Sen.,  Jan.,  1817,  in 
case  of  The  Armstrong.  Twee  Gebroeders,  3  Rob.  Rep.,  162. 
1  Wheaton,  405  ;  4  Wheaton,  52  ;  Ibid.,  298. 

4.  The  indemnity  due  must  be  obtained  by  the  neutral  at  his 
own  expense,  and  at  all  hazards.     Duponceau's  Law  of  War,  p.  60. 

5.  The  admissions  of  Portugal's  liability  to  the  United  States, 
and  her  demand  against  England.     See  Letters  of  the  Marquis  de 
Aguiar  to  Mr.  Sumpter,  the  American  Minister  at  Rio,  and  to  the 
British  Minister,  Lord  Strangford,  22  Dec.,  1814. 

6.  The  liability  of  Portugal  in  this  case  has  been   uniformly 
asserted   by   our    government.      (See   instructions.)      Monroe   to 
Sumter,  3d  January,  1815  ;  Adams  to  de  Serra,  14th  May,  1818  ; 
Dickens  to  Kavanagh,  20th  May,  1835  ;  Forsyth  to  Kavanagh,  22d 
October,  1835  ;  Webster  to  Barrow,  15th  January,  1842  ;  Web- 
Bter  to  Barrow,  18th  August,  1842  ;  Clayton  to  Hopkins,  20th 
April,  1849  ;  Clayton  to  Clay,  8th  March,  1850. 

1.  Liability  of  the  government  for  its  mis-conduct  and  neglect  in 
the  prosecution  of  the  claim.  Sheels  vs.  Blackburne,  1  Henry 
Blackstone,  158  ;  Fellows  vs.  Gordon,  8  B.  Monro,  415. 

8.  The  government  is  bound  to  protect  its  citizen,  and  obtain 
redress  when  spoliated  by  a  foreign  government,  or  become  itself 
responsible.     Wendell's    Blackstone,   pp.   310,   311,    and    notes  ; 
Baron  de  Bode's  case,  16  Eng.  L.  and  Eq.  Rep.,  p.  23  ;  Farnham 
vs.  Brooks,  9  Pickering's  Rep.,  239  :  See  Denio,  Ch.  J.,  3  Kernan's 
N.  Y.,  Rep..  149.     (See  Decision  of  British  Commissioners  in  the 
case  of  the  Hudson  Bay  Company  vs.  the  United  States,  reported 
in  adjustment  of  claims  under   the  convention  of  8th  February, 
1853,  with   Great   Britain,  p.   165,   in   President's   Message   of 
Aug.  11,  1856.) 

9.  In  accepting  a  proposition  to  arbitrate  a  case,  the  several 


BBIEF   OF   AUTHOBITIE8.  XX111 

parts  of  the  offer  cannot  be  separated,  it  must  be  accepted  or 
rejected  in  toto.  2d  Sandford's  Chancery  Rep.,  244. 

10.  In  submitting  the  case  to  arbitration,  without  the  assent  of 
the  claimants,  and  refusing  them  the  right  to  be  heard  in  any  man- 
ner by  the  arbitrator,  either  as  to  the  law  of  the  case,  or  by  the 
production  of  evidence  as  to  the  facts.  See  Elmendorf  vs.  Harris, 
23  Wend.  633  ;  Jordan  vs.  Hyatt,  3  Barb.,  s.  c.,  215  ;  Oswald  vs. 
Gray,  29  Eng.  Law  and  Eq.,  88  ;  Emory  vs.  0 wings,  7  Gill.,  488; 
Kyd  on  Awards,  95  ;  Falconer  vs.  Montgomery,  4th  Dallas's  Rep., 
233  ;  Sharp  vs.  Bickerdike,  3d  Dow's  Parliamentary  Rep.,  102. 

llth.  In  accepting  the  award  as  final  and  conclusive,  when  it 
should  have  been  rejected  as  not  responding  to  the  terms  of  the 
submission.  Vattel's  Law  of  Nations,  p.  277  ;  Wildman,  vol.  1 
p.  186  ;  Steers  vs.  Lashel,  1  Esp.  N.  P.  C.,  p.  167  ;  Oxenhan  vs. 
Lemon,  2  Dow.  &  R.,  461  ;  Vattel,  book  11,  ch.  18,  §  239. 


REPORT 


OF  THE 


ARGUMENTS. 


ARGUMENT  OF  SAM  0.  REID,  JUN.,  ESQ. 

IN  THE  CASE  OF  THE  CLAIMANTS  OF  THE  PRIVATE  ARMED  BRIO  GENERAL 
ARMSTRONG.  BEFORE  THE  U.  S.  COURT  OF  CLAIMS,  SITTING  IN  THE 
NATIONAL  CAPITOL. 

WASHINGTON,  Saturday,  November  l*lth,  1855. 

THIS  cause  came  on  to-day  by  consent.  Present  their  Honors 
JOHN  J.  GILCHRIST,  Chief-Justice  ;  ISAAC  BLACKFORD,  and 
GEORGE  P.  SCARBURGH,  Associate  Justices. 

The  Claimants  were  represented  by  CHARLES  O'CoNOR,  Esq.,  and 
SAM  C.  REID,  Junior,  of  New  York  ;  Hon.  P.  PHILLIPS,  of  Alabama, 
and  HON.  CHARLES  NAYLOR,  of  Pennsylvania. 

HON.  MONTGOMERY  BLAIR,  IT.  S.  Solicitor,  appeared  for  the 
Government. 

MR.  REID,  on  opening  the  case,  addressed  the  Court  as  follows  : 

May  it  please  the  honorable  Court — 

I  present  myself  before  your  honors  to-day  to  vindicate  a  prin- 
ciple of  national  faith,  to  substantiate  the  oath  of  American  honor, 
and  to  verify  a  great  national  and  historical  fact,  denied  both  by 


10  BRIO  GENERAL   ARMSTRONG. 

Portugal  and  England,  and  solemnly  declared  to  be  false  by  the 
public  decree  of  France. 

0 

In  doing  so,  I  shall  expose  the  most  remarkable  diplomatic  nego- 
tiation to  be  found  on  record  ;  which  reflected  as  great  discredit  by 
the  course  pursued,  as  the  gallant  and  brave  defence  made  by  the 
vessel  shed  glory  and  splendor  upon  the  country. 

Sirs,  this  is  a  case  in  which  not  only  the  claimants  are  interested  : 
it  is  a  cause  in  which  every  patriot,  every  American,  has  a  deep, 
absorbing  interest,  so  far  as  the  honor  of  his  own  country  is 
concerned. 

I  shall  ask  the  great  indulgence  of  this  Court,  as  I  proceed  to  lay 
before  it  the  evidence  to  establish  the  facts  alleged,  and  I  beg  your 
honors  will  extend  to  me  your  liberal  forbearance  and  attention.* 

The  petition  charges  that,  on  the  26th  and  27th  of  September, 
A.D.  1814,  the  United  States  private  armed  brig  General  Arm- 
strong commanded  by  Captain  Sam  C.  Reid,  belonging  to  the  port 
of  New  York,  was  destroyed  by  a  large  British  fleet  in  the  neutral 
port  of  Fayal,  in  the  Dominions  of  Portugal,  in  violation  of  the  laws 
of  nations.  That  the  Government  of  Portugal,  immediately  after 
the  transaction,  admitted  her  liability  to  this  Government,  and 
called  upon  England  for  an  apology  and  indemnification,  which  was 
unhesitatingly  accorded.  That  the  United  States  Government, 
from  the  inception  of  this  claim  to  the  present  day,  has  always 
acknowledged  the  rights  of  the  claimants  as  legal  and  just.  That 
under  the  administration  of  General  Taylor,  a  fleet  was  sent  to 
Portugal  and  a  peremptory  demand  made  for  this  claim.  That 
afterwards  the  Government  of  the  United  States  made  a  treaty 
with  Portugal,  whereby  she  compromised  the  rights  of  the  claimants, 
and  for  a  bonus  agreed  to  refer  the  "Armstrong  Claim"  to  arbitration. 
That  Louis  Napoleon,  the  Umpire,  decided  adversely  to  the  claim- 
ants, and  contrary  to  the  law  and  evidence,  and  the  facts  in  the 
case,  and  in  violation  of  his  oath  as  President  of  the  Republic  of 
France,  the  decision  having  been  rendered  by  the  "  Emperor  of 
France."  That  the  treaty  and  agreement  made  with  Portugal  to 

*  See  Appendix  for  documents  read  in  evidence. 


AEGUMENT   OF   SAM   C.    BEID,   JE.,    ESQ.  11 

arbitrate  this  claim  was  made  without  the  knowledge,  consent,  or 
advice  of  the  claimants  or  their  agent.  That  the  Government  of 
the  United  States  never  protested  against  said  award  as  being 
illegal,  unjust,  and  contrary  to  the  articles  of  the  treaty  in  this 
case  made  with  Portugal,  although  she  was  fully  aware  of  the 
same. 

That  the  Government  of  the  United  States,  in  making  said  treaty 
with  Portugal,  without  the  knowledge,  advice,  or  consent  of  the 
claimants,  assumed  the  responsibility,  and  undertook,  and  promised 
to  pay  the  claimants  their  justly-recognized  demands  against  Por- 
tugal, to  wit :  the  sum  of  one  hundred  and  thirty-one  thousand  and 
six  hundred  dollars,  being  the  amount  recognized  by  this  Govern- 
ment and  demanded  of  Portugal. 

That  the  facts  herein  contained  all  appear  in  the  following  docu- 
ments, which  are  prayed  to  be  filed  herewith,  and  made  a  part  of 
this  petition,  to  wit : 

No.  1.  "  The  memorial  to  Congress  of  Sam  C.  Reid,  jr." — (Sen. 
Mis.  Doc.  No.  14,  1st  sess.  33d  Congress.) 

No.  2.  "  Message  of  the  President  of  the  United  States,"  con- 
taining the  correspondence,  &c.,  from  1814  to  1844,  in  Sen.  Doc. 
14,  1st  sess.  29  Congress. 

No.  3.  "  Convention  and  treaty  with  Portugal." 

No.  4.  "  Message  from  the  President  of  the  United  States,"  con- 
taining correspondence,  &c.,  between  this  Government  and  Portugal, 
in  Ex.  Doc.  No.  53,  Ho.  of  Rep.  1st  sess.  32d  Congress. 

No.  5.  "  Correspondence  and  award  of  Louis  Napoleon,"  in  Ex. 
Doc.  No.  24,  Senate  2d  sess.  32  Congress. 

No.  6.  "  Reports  of  Committees  in  Senate  and  House  of  Repre- 
sentatives."— (1st  sess.  33d  Congress,  No.  157  Senate,  and  139 
House  of  Representatives." 

No.  7.  Debate  on  the  bill  in  the  Senate,  in  speeches  of  Ho. . 
Messrs.  Clayton,  Brown,  Bayard,  Seward,  Weller,  Cass,  and 
Houston. 

Your  petitioner  further  represents  that  the  said  claim  was  pre- 


12  BRIG  GENERAL  ARMSTRONG. 

sen  ted  to  the  Congress  of  the  United  States  on  the  19th  day  of 
January,  1854,  and  referred  to  the  Committee  on  Foreign  Relations 
in  the  Senate.  Said  Committee,  on  the  10th  day  of  March,  1854, 
reported  in  favor  of  said  claimants  ;  which  said  report  and  accom- 
panying bill  have  been  made  parts  of  this  petition.  On  the.  26th 
day  of  January,  1855,  the  bill  was  ordered  to  be  engrossed  for  a 
third  reading,  by  a  vote  in  the  Senate  of  ayes  22,  nays  17,  which 
vote  was  afterwards  reconsidered  on  the  16th  February,  1855,  and 
the  bill  ordered  to  lie  upon  the  table  by  a  vote  of  ayes  24,  nays  23. 
Your  petitioner  further  represents  that  the  said  claim,  having 
also  been  presented  to  the  House  of  Representatives,  the  Committee 
on  Foreign  affairs,  to  whom  it  was  referred,  reported  in  favor  of  the 
claimants  on  the  29th  of  May,  1854,  which  said  report  and  accom- 
panying bill  have  been  made  parts  of  this  petition.  That  said  bill 
for  the  relief  of  the  claimants  failed  to  be  acted  upon  by  the  House 

0 

of  Representatives  for  the  want  of  time,  and  was,  by  a  resolution 
of  that  body,  transferred  to  this  honorable  court. 

Therefore  your  petitioner  prays  that,  in  consideration  of  the  pre- 
mises, after  investigation  and  argument  herein,  a  bill  be  reported 
by  this  honorable  court  for  the  relief  of  the  owners,  officers,  and 
crew  of  the  United  States  private  armed  brig  General  Armstrong, 
the  claimants  in  this  case,  to  the  Congress  of  the  United  States, 
appropriating  the  sum  of  one  hundred  and  thirty-one  thousand  six 
hundred  dollars,  to  be  paid  to  the  said  claimants,  or  to  their  legally 
authorized  representatives,  out  of  the  treasury  of  the  United  States. 

And,  in  duty  bound,  your  petitioner  will  ever  pray,  &c., 

SAM  C.  REID,  JR. 

Agent  and  Attorney  for  Claimants. 

DISTRICT  OF  COLUMBIA, 
City  and  County  of  Washington. 

Personally  appeared  before  me,  the  undersigned,  Sam  C.  Reid, 
Jr.,  one  of  the  claimants  in  the  above  case,  who,  being  sworn,  made 


ARGUMENT    OF    SAM   C.    REID,   JR.,    ESQ.  13 

oath  that  the  matters  contained  in  the  annexed  printed  statement 
are  true,  to  the  best  of  his  knowledge  and  belief. 

SAM  C.  REID,  JR. 

Sworn  and  subscribed  before  me  this  13th  day  of  July,  A.D.  1855. 
W.  P.  WILLIAMS,  Notary  Public. 

MR.  REID  here  proceeded  to  read  to  the  Court  the  following  docu- 
ments as  evidence  in  support  of  this  case.     [See  Appendix.] 


Monday  November  18th,  1855. 

MR.  REID,  on  offering  in  evidence  the  letter  of  Mr.  Chas.  W. 
Dabney,  U.  S.  Consul  at  Fayal,  to  Mr.  Wm.  L.  Marcy,  Secretary 
of  State, 

MR.  BLAIR  objected,  and  said — I  do  not  know  what  are  the  con- 
tents of  the  letter  the  gentleman  proposes  to  read  or  what  he 
intends  to  prove  by  it.  The  gentleman  has  already  read  several 
papers  to  the  Court  not  included  in,  or  made  part  of  his  petition, 
and  I  shall  insist  on  his  confining  himself  solely  to  the  documents  in 
the  petition. 

MR.  PHILLIPS  rose  to  explain,  and  said — May  it  please  your 
Honors,  the  letter  in  question  is  of  a  remarkable  character,  and 
goes  to  establish  the  fact,  beyond  all  dispute  or  cavil,  that  the 
British  were  the  first  to  violate  the  neutrality  of  the  port  of  Fayal. 
The  existence  of  this  letter  was  discovered  but  a  few  days  ago,  by 
Mr.  Reid,  from  an  incidental  conversation  with  a  gentleman,  late  an 
officer  of  our  navy,  who  visited  Fayal  about  a  year  ago,  and  who 
had  conversed  with  Mr.  Dabney  on  the  subject.  I,  therefore,  move 
that  the  petition  be  amended,  and  that  this  letter  and  the  other 
documents,  not  alluded  to  in  the  petition,  be  made  a  part  thereof. 

MR.  BLAIR  opposed  the  motion. 


14  BRIG   GENERAL   ARMSTRONG. 

MB.  REID.  If  the  Court  please,  the  course  pursued  by  the  learned 
solicitor,  on  this  occasion,  is  very  remarkable.  He  has  sat  by, 
listening  to  the  reading  of  documents  and  letters  used  against  the 
claimants  in  the  debate  on  this  claim  in  the  Senate  (not  referred  to 
in  the  petition)  and  took  no  objection,  because  the  evidence  was 
supposed  to  run  in  favor  of  the  government.  He  has  heard  me 
read  private  letters  produced  against  the  claimants  by  the  Depart- 
ment of  State,  charging  them  with  having  acquiesced  to  this  arbi- 
tration, and  no  objection  was  taken  whatever.  But  when  I  come  to 
read  a  piece  of  newly-discovered  evidence — a  public  letter  to  this 
government,  tending  to  establish  the  rights  of  the  claimants,  the 
learned  solicitor  objects  ! 

Sirs,  I  have  concealed  nothing  in  this  case.  I  have  put  every 
particle  of  evidence  before  this  Court,  for  and  against  the  claim- 
ants. The  learned  solicitor  asks  what  this  letter  contains  ?  Sirs,  it 
contains  the  truth — the  very  essence  of  this  case.  It  contains  the 
statement  of  a  distinguished  gentleman,  widely  known  on  both  sides 
of  the  Atlantic,  for  his  nobleness  of  character,  for  his  honor  and 
probity.  A  gentleman,  whose  princely  position  and  wealth  puts 
him  beyond  the  reach  of  suspicion  or  temptation  1  I  appeal  to  the 
magnanimity  of  the  solicitor,  and  ask  him  whether  his  duty,  as  a 
government  officer,  prompts  him  to  make  these  technical  objections 
in  a  case  of  this  character,  or  whether  it  should  not  urge  him  to 
adopt  a  nobler  course — that  of  the  highest  equity  ?  I  hope  the 
motion  of  my  learned  colleague  will  prevail. 

BY  THE  COURT  [after  consultation] .  Leave  to  amend  the  petition 
will  be  granted,  and  the  documents  considered  as  made  a  part 
thereof. 

The  letters  marked  A,  B,  C,  D,  E,  and  F,  and  documents  marked 
[1,  2,  3,  and  4]  were  then  made  part  of  the  petition. 

MR.  REID  having  read  Mr.  Dabney's  letter,  and  other  documents, 
here  rested  the  case,  and  it  being  near  three  o'clock,  the  Court 
adjourned. 


ARGUMENT   OF   SAM   C.    KEID,   JB.,    ESQ.  15 


Tuesday,  November  20M. 

The  Court  met  pursuant  to  adjournment.  The  evidence  haviug 
been  closed, 

MR.  REID,  in  summing  up,  spoke  as  follows  : 

May  it  please  the  honorable  Court — 

I  come  now  to  the  argument  of  this  cause,  upon  the  evidence 
which  has  been  laid  before  it. 

I  come  to  the  argument  of  this  cause  with  deep  and  powerful 
feelings  of  a  sense  of  wrong  and  injury,  which  have  been  heaped  upon 
the  claimants  for  nearly  half  a  century  !  I  will  not  conceal  that  I 
come  to  it  exultingly,  and  that  I  have  looked  forward  to  this  hour 
with  an  intense  and  painful  interest. 

I  shall  permit  no  scruples  of  policy  to  guide  my  course,  and  I 
shall  speak  in  plain  language  as  being  the  best  adapted  to  the 
\jndication  of  truth,  of  honor,  and  of  justice,  which  have  so  long 
been  made  subservient  to  the  miserable  falsehoods,  prevarications, 
and  weaknesses  of  unjust  men  I 

Assuming  the  doctrine  laid  down  by  the  most  distinguished  com- 
mentators and  publicists  on  international  law,  be  true,  that  the 
violation  of  the  port  or  territory  of  any  neutral  power  by  a  belli- 
gerent, and  the  capture  of  property,  public  or  private,  under  the 
protection  of  the  neutral  flag,  imposes  on  the  neutral  power  a  lia- 
bility to  indemnify  the  owner  for  all  losses  sustained,  I  shall  pro- 
ceed to  fix  the  liability,  in  this  case,  first,  upon  Portugal. 

We  charge  that  the  brig  General  Armstrong  was  attacked  and 
destroyed  by  the  British  fleet,  in  violation  of  the  laws  of  neutrality, 
and  of  the  protection  which  that  vessel  sought  in  the  neutral  port 
of  Fayal.  To  support  this  fact,  we  have  the  sworn  protest  of 
Captain  Reid,  and  nine  of  his  officers  ;  the  letters  of  John  B.  and 
Charles  W.  Dabney,  IT.  S.  consuls  at  Fayal ;"  the  statement  of 
Governor  Ribeiro ;  and  the  letters  of  the  Marquis  de  Aguiar,  the 


16  BEIG  GENERAL  ARMSTRONG. 

Portuguese  Minister  of  State,  to  Mr.  Sumpter  and  Lord  Strangford, 
the  American  and  British  ambassadors  at  Rio  Janeiro. 

It  must  be  remembered  that  the  statement  of  Gov.  Ribeiro  to 
hie  government  was  his  voluntary  act,  founded  upon  official  reports 
made  to  him  by  the  officers  of  the  Castle,  and  what  he  himself  wit- 
nessed. In  this  statement,  the  violation  of  the  neutrality  of  the  port 
of  Fayal  is  expressly  charged  against  the  commander  of  the  British 
fleet.  In  describing  the  affair,  the  Governor  says  : 

"  We  are  now,  for  the  first  time,  made,  witnesses  to  a  horrible  and 
bloody  combat,  occasioned  by  the  madness,  pride,  and  haughtiness 
of  an  insolent  British  officer,  who  would  not  respect  the  neutrality 
maintained  by  Portugal,  in  the  existing  contest  between  his  Britannic 
Majesty  and  the  United  States  of  America." 

The  Marquis  de  Aguiar,  in  his  letter  to  Mr.  Sumpter,  says  : 

"  Nor  can  his  royal  highness  avoid  viewing  this  affair,  in  the 
light  it  is  represented,  as  attacking  his  sovereignty  and  independ- 
ence, by  the  manifest  violation  of  his  territory  in  the  infringement 
of  its  neutrality,  which  ought  to  have  been  observed  by  the  two 
belligerent  powers.  Not  a  moment's  delay  ensued  in  causing  to  be 
addressed  to  the  British  minister  at  this  court  the  note  which  is 
confidentially  communicated  by  a  copy  to  your  lordship,  at  the  same 
time  that  he  directed  his  minister  in  London  to  make  the  reclama- 
tion so  serious  an  offence  requires." 

In  the  letter  of  the  marquis  to  Lord  Strangford,  the  language  is 
unequivocal.  He  says  : 

"His  excellency  will  likewise  observe  the  base  attempt  of  the 
British  commander,  at  the  time  he  commenced  the  unprovoked 
attack  on  the  American  privateer,  to  attribute  those  violent  meas- 
ures to  the  breaking  of  the  neutrality  on  the  part  of  the  Americans 
in  the  first  instance,  by  repelling  the  British  armed  barges  that  were 
sent  for  the  purpose  of  reconnoitering  that  vessel,  advocating,  with 
the  most  manifest  duplicity,  that  they  were  consequently  the  aggres- 
sors ;  but  what  appears  still  more  surprising,  is  the  arrogance  with 
which  the  British  commander  threatened  to  consider  the  territory 


ARGUMENT   OF   SAM   C.    REID,   JR.,    ESQ.  17 

of  his  royal  highness  as  enemies,  should  the  governor  adopt  any 
measures  to  prevent  them  from  taking  possession  of  the  American 
privateer,  which  they  subsequently  plundered  and  set  on  fire  ! 

"  His  royal  highness,  at  the  same  time  that  he  has  directed  his 
minister  at  the  court  of  London  to  make  the  strongest  representa- 
tions before  the  prince  regent  of  the  United  Kingdom  of  Great 
Britain,  and  require  satisfaction  and  indemnification,  not  only  for  his 
subjects,  tut  for  the  American  privateer,  whose  security  was  guaran- 
teed by  the  safeguard  of  a  neutral  port,  orders  it  to  be  signified  to 
his  excellency,  Lord  Strangford,  that  he  may  inform  his  government 
of  the  unfavorable  impression  the  conduct  of  that  British  commander 
had  caused  in  the  mind  of  his  royal  highness,"  &c. 

Here,  then,  is  the  open  avowal  and  admission,  on  the  part  of  Por- 
tugal, of  her  responsibility  to  the  United  States  ;  and  a  demand 
made  by  the  prince  regent  of  Portugal,  of  his  own  free  will  and 
accord,  for  satisfaction  and  indemnification  from  England,  before  he 
was  ever  called  on  by  this  government  to  make  indemnity. 

In  1814,  in  compliance  with  the  demand  made  by  Portugal,  Lord 
Bathurst  instructs  Mr.  Canning,  the  British  ambassador  at  Lisbon, 
to  make  a  verbal  apology  to  the  prince  regent. 

In  1815,  Mr.  Monroe  instructs  Mr.  Sumpter  to  call  the  attention 
of  the  Portuguese  government  to  this  case,  "  and  to  state  the  claim 
which  the  injured  party  has  to  immediate  indemnification."  Mr. 
Sumpter  replies,  that  a  demand  for  satisfaction  had  already  been 
made  from  the  British  government. 

In  1817,  Lord  Castlereigh,  in  obedience  to  the  demand  of  Por- 
tugal, sends  £319  to  indemnify  the  subjects  of  that  government. 
Now,  why  the  indemnity  demanded  for  the  loss  of  the  Armstrong 
was  not  sent,  or  the  grounds  of  England's  refusal  stated,  we  do  not 
know,  for  we  never  have  had  the  benefit  of  any  of  the  correspond- 
ence between  Portugal  and  England.  But  it  is  not  material  at  this 
point  to  make  the  inquiry.  It  is  sufficient  that  the  fact  of  Eng- 
land's apology  and  indemnification  to  Portugal  stands  patent  and 
incontrovertible  With  what  assurance,  then,  can  England  attempt 

3 


18  BRIG   GENERAL   ARMSTRONG. 

to  charge  on  this  government  the  very  offence  for  which  she  had 
made  reparation  and  apologized  for  thirty  years  ago  ? 

In  1818,  Mr.  J.  Q.  Adams  reiterates  the  demand  against  Portu^ 
gal,  in  his  letter  to  the  Chevalier  de  Serra,  who  is  informed  that 
this  claim  has  been  admitted  by  the  acknowledgments  of  the  officers 
of  his  own  government.  At  that  time,  both  Portugal  and  England 
had  before  them  the  counter-statement  of  commander  Lloyd,  and 
the  affidavit  of  Lieutenant  Fausset  (the  latter  made  21th  September, 
1814),  and  neither  government  charged  Captain  Reid  with  violating 
the  neutrality  of  the  port  of  Fayal. 

Why  did  not  Portugal  then  inform  the  United  States  that  Eng- 
land had  refused  to  make  indemnity  for  this  vessel,  and  "  at  that 
time,"  in  the  language  of  Count  Tojal,  "  every  motive  had  ended  for 
expecting  the  British  government  to  accede  to  the  claim  of  his 
majesty's  government  for  indemnification  of  the  loss  of  said  pri- 
vateer ?" 

Why  was  not  Lord  Strangford  immediately  instructed  by  his 
government  to  reply  to  the  withering  charges  made  against  com- 
mander Lloyd,  whose  conduct  had  been  stigmatized  in  such  unmeas- 
ured terms  ?  Why  was  not  Portugal  made  to  retract  the  language 
and  apologize,  instead  of  the  "apology  and  indemnity  made  by 
England  ?  and  why  was  not  a  demand  for  an  apology  and  indem- 
nification presented  against  this  government  for  the  outrage  com- 
mitted ?  Because  the  damning  guilt  of  Commander  Lloyd  had 
been  too  strongly  established,  and  he,  as  well  as  Governor  Ribeiro, 
had  been  reprimanded  by  their  respective  governments. 

Look  at  the  falsehood  and  villainy  of  this  lago  Lloyd,  through 
whom  England  has  since  taught  Portugal  that  the  honor  of  her 
Desdemona  was  false  1  What  does  he  say  in  his  letter  to  the 
Governor  of  Fayal,  written  about  two  hours  after  the  first  attack  : 

"Sir — Permit  me  to  inform  you  that  one  of  the  boats  of  his 
Britannic  majesty's  ship  under  my  command,  was,  without  the  slight- 
est provocation,  fired  on  by  the  American  schooner  General  Arm- 
strong, in  consequence  of  which  two  men  were  killed  and  seven  were 

i 


ABGTTltENT  Off   BAM  C.    EEID,   JR.,   ESQ.  19 

Bounded,  and  that  the  neutrality  of  the  port,  which  I  had,  determined 
to  respect,  has  been  thereby  violated.  In  consequence  of  this  out- 
rage, I  am  determined  to  take  possession  of  that  vessel,  and  hope 
that  you  will  order  your  forts  to  protect  the  force  employed  for  that 
purpose. 

"  With  due  respect,  I  remain,  sir,  your  obedient  servant, 

"  THE  COMMANDER 
"  Of  his  Britannic  Majesty's  Forces" 

I  challenge  tne  production  of  any  epistle  of  equal  brevity,  con- 
taining so  many  unqualified  falsehoods,  and  so  much  arrogant 
impudence.  Why,  sirs,  he  knew  every  word  of  it  was  false  at  the 
time  he  penned  it,  and  his  innate  consciousness  of  the  fact  made  him 
ashamed  to  sign,  his  name  to  it  1  I  will  now  read  Mr.  Charles  W. 
Dabney's  letter,  which  has  been  sleeping  for  over  two  years  in  the 
Department  of  State,  and  which  burst  upon  us  like  a  gleam  of  sun- 
light on  a  dark  gloomy  tower,  with  all  the  effulgence  and  brilliancy 
of  living  truth : 

"[No.  169.]     CONSULATE  OF  THE  U.S.  FOR  THE  AZORES. 

"  Fayal,  May  21,  1853. 

"  Sir — The  award  of  his  majesty  Napoleon  III.,  in  the  case  of  the 
General  Armstrong,  having  just  met  my  eye,  I  feel  impelled,  by  a 
regard  for  our  national  honor,  as  well  as  justice  to  the  actors  in  that 
unparalleled  affair,  to  disavow,  on  their  part,  the  slightest  infringe- 
ment of  the  neutrality  of  this  port.  The  pecuniary  amount  is  of  no 
consequence  to  us  ;  but  I  cannot  allow  the  brilliancy  of  that  action 
to  be  tarnished,  or  the  slightest  stain  to  rest  on  our  national 
escutcheon.  When  I  heard  that  his  majesty  was  to  be  the  arbi- 
trator, I  felt  assured  that  the  case  would  be  thoroughly  inves- 
tigated, and  that  there  would  not  be  any  doubt  as  to  the  result ; 
and  I  confess  that  I  was  sadly  disappointed  to  find  that,  from  some 
cause  or  other,  the  case  had  not  been  rightly  understood  by  his 
majesty. 

"  In  the  summer  of  1814,  the  British  sloop-of-war  '  Thais'  and 


brig  'Calypso'  were  cruizing  on  this  station.  Their  commanders 
were  prudent  men.  When  the  brig-of-war  '  Carnation'  hove  in  sight 
it  was  supposed  to  be  the  '  Calypso,'  and  no  apprehensions  were 
entertained,  as  we  felt  assured  that  the  commander  would  not 
attempt  to  violate  the  neutrality  of  the  port.  But  when  we  were 
informed  that  a  frigate  and  a  larger  vessel  were  in  company,  we 
concluded  that  it  must  be  the  razee  Plantaganet,  frigate  Rota,  and 
brig  Carnation,  under  the  command  of  Mad  Lloyd  *  (the  same  that 
made  the  senseless  attack  on  Crany  Island),  who  had  been  here 
three  weeks  before,  and  had  boasted  that  he  had  boats  built  expressly 
for  cutting  out  American  privateers,  and  that  he  would  destroy 
them  wherever  he  found  them. 

"  Knowing  what  we  had  to  expect,  I  (being  then  in  my  twenty-first 
year)  was  sent  by  my  father  (consul  of  the  United  States)  to  recom- 
mend Captain  Reid  to  slip  bis  cable  and  warp  his  vessel  close  in 
under  the  guns  of  the  castle.  While  I  was  on  board,  the  Carnation 
anchored  witbin  pistol-shot  of  the  Armstrong,  the  frigate  about  half- 
a-mile,  and  the  razee  about  a  mile  distant,  yet  under  sail,  it  being 
calm,  and  boats  were  passing  between  the  English  vessels.  Captain 
Reid  immediately  gave  orders  to  carry  into  effect  the  advice  that  I 
had  communicated  to  him,  and  I  came  on  shore  ;  just  as  I  was 
landing  (ten  minutes  after  I  had  left  the  Armstrong),  I  heard  the 
report  of  musketry  ;  and  soon  after,  a  Captain  Smith,  who  had  gone 
on  board  to  see  Captain  Reid,  came  on  shore  with  a  message  from 
the  latter,  informing  us  that,  while  in  the  act  of  warping  in,  he  had 
been  approached  by  four  boats,  containing,  by  estimate,  one  hundred 
and  twenty  men  ;  that  they  were  warned  repeatedly  not  to  approach, 
or  that  he  would  fire  into  them  -r  which,  instead  of  heeding,  only 
seemed  to  stimulate  their  exertions  ;  and,  as  there  could  be  no 
mistake  of  their  intention  to  take  them  by  surprise,  no  attention 
being  paid  to  the  warning,  he  had  ordered  his  men  to  fire,  which  was 
immediately  returned  from  the  boats,  killing  one  man  and  wounding 

•  A  distinction  bestowed  upon  him  by  his  own  countrymen. 


OF   SAMUEL   a    BKID,    JR.,    ESQ.  21 

the  first-lieutenant ;  but,  having  found  their  reception  too  warm, 
they  sued  for  quarter,  which  was  immediately  granted  (they  were 
then  nearly  alongside  of  the  Armstrong).  Captain  Smith  wa* 
deputed  by  Captain  Reid  to  request  my  father  to  take  the  necessary 
steps  for  his  protection,  and  I  was  sent  in  quest  of  the  governor, 
whom  I  found  at  Judge  Arriaga's,  a  mile  from  town.  I  was  com- 
missioned to  request  him  to  remonstrate  with  Captaia  Lloyd  (the 
force  under  his  command  being  wholly  inadequate  to  cope  with  that 
of  the  British  squadron)  and  to  allow  us  to  sead  thirty-two  Ameri- 
can seamen  that  we  had  here  to  assist  in  defending  the  Armstrong, 
should  she  be  again  attacked.  The  latter  request  the  governor  said 
he  could  not  grant,  as  it  would  be  an  infringement  of  the  neutrality 
on  his  part,  but  he  accompanied  me  forthwith  to  town,  and  no  time 
was  lost  in  dispatching  one  of  his  aids  with  an  official  remonstrance. 
Captain  Lloyd  returned  a  verbal  answer,  indicative  of  his  intention, 
and  three  hours  after  the  grand  attack  was  made  on  the  Arm- 
strong, then  within  forty  yards  of  the  Castle. 

"These  simple  facts  require  no  comment,  as  they  admit  of  no 
doubt.  If  there  could  be  any  doubt,  the  character  of  the  commander 
is  a  circumstance  of  the  greatest  importance  in  forming  a  correct 
opinion  of  the  case. 

"  I  send  a  plan  of  the  harbor,  showing  the  relative  position  of  the 
Armstrong  during  the  first  and  second  engagements. 

"  I  trust  that  my  motive  in  addressing  you  on  this  occasion  will 
be  appreciated,  and,  with  the  highest  consideration  and  respect, 
have  the  honor  to  be,  sir, 

"  Your  most  obedient  servant, 

"  CHAS.  W.  DABNET. 
«  Hon.  W.  L.  Marey, 

"  Secretary  of  State,  U.  S. 

"  I  am  conversant  with  the  French  language,  and,  if  necessary, 
would  willingly  go  to  Paris  to  afford  any  explanation  that  may  be 

required, 

"  DABNET. 


22  BRIG   GENERAL   ARMSTRONG, 

"  I  can  prove  that  the  British  vice-consul,  who  was  then  residing 
on  the  opposite  shore  of  Pico,  sent  a  letter  on  board  the  commo- 
dore's vessel  two  hours  before  they  anchored  ;  consequently  there 
was  no  necessity  for  '  reconnoitering '  with  four  boats  full  of  armed 
men." 

"  United  States  of  America,  Department  of  State  : 

"  To  all  whom  these  presents  shall  come,  greeting  : 

"  I  certify  that  the  paper  hereunto  annexed  is  a  true  copy,  trans- 
cribed from  and  carefully  collated  with  the  original  paper  on  file 
in  this  department. 

"  In  testimony  whereof,  I,  William  L.  Marcy,  Secretary  of  State 
of  the  United  States,  have  hereunto  subscribed  my  name,  and  caused 
the  seal  of  the  Department  of  State  to  be  affixed. 

"  Done  at  the  city  of  Washington,  this  first  day  of  November, 
A.  i).  1855,  and  of  the  independence  of  the  United  States  of  America 

the  80th. 

"  W.  L.  MARCY." 

None  but  a  true  patriot — none  but  a  chivalrous,  high-toned  man 
of  honor,  could  have  written  such  a  letter.  And  what  does  this 
glorious  son  of  a  noble  sire  say?  He  tells  this  government  "the 
pecuniary  amount  is  of  no  consequence  to  us,"  but  he  "  cannot  allow  the 
brilliancy  of  that  action  to  be  tarnished,  or  the  slightest  stain  to  rest  on 
our  national  escutcheon!"  It  is  upon  this  principle,  sirs,  that  I  have 
prosecuted  this  claim.  It  is  the  national  and  individual  point  of 
honor  that  I  stand  here  to-day  to  vindicate,  and  I  am  deeply 
indebted  to  Mr.  Chas.  W.  Dabney  for  his  assistance  in  enabling  me 
to  sustain  it. 

Mr.  Dabney  states  that,  while  he  was  on  board  the  brig  General 
Armstrong,  the  Carnation  anchored  within  pistol-shot  of  the  Ameri- 
can brig,  and  at  that  time,  it  being  calm,  boats  were  passing  between 
the  English  vessels.  This,  sirs,  was  a  part  of  the  suspicious  move- 
ments which  Mr.  Dabney's  father  speaks  of,  and  which  induced  that 


ABGUMENT   OF   SAM   C.    ESIDj    JR.,    ESQ.  23 

noble  gentleman,  the  late  Hon.  John  B.  Dabney,  to  send  his  son 
aboard  Captain  Reid's  brig,  to  advise  him  to  warp  his  vessel  in 
under  the  guns  of  the  Castle.  We  see  that  Captain  Reid  took  this 
advice,  and  commenced  warping  in  his  vessel,  and  that  young 
Dabney  had  hardly  landed  ashore  from  his  boat  when  the  English 
attacked  the  Armstrong,  and  the  report  of  musketry  was  heard. 
The  very  position  of  the  British  vessels  shows  the  unmistakable 
intention  of  the  English  at  the  time.  [Mr.  Reid  here  demonstrated 
on  the  map  of  the  harbor  of  Da  Horta,  sent  by  Mr.  Dabuey,  the 
position  of  the  Armstrong  during  the  three  several  attacks,  and  the 
position  of  the  English  ships  and  boats.]  The  evidence  is  indisput- 
able that  Captain  Reid  took  all  prudent  measures  in  his  power  to 
avoid  a  collision,  and  to  prevent  a  violation  of  the  laws  of  neutrality. 
No  provocation,  at  that  time,  could  have  induced  Captain  Reid  to 
fire  a  gun,  to  jeopardize  his  safety,  except  in  actual  self-defence  and 
self-preservation.  The  very  assertion  on  the  part  of  the  English 
that  Captain  Reid  commenced  the  attack  against  so  overpowering  a 
force,  is  despicable  and  degrading.  None  but  a  madman  would  have 
attempted  it,  and  that  madman,  on  this  occasion,  seems  to  have  been 
Commander  Lloyd,  whose  own  countrymen  called  him  mad.  And 
the  governor  of  Fayal  attributes  this  attack  to  his  madness,  for  he 
says  it  was  "  occasioned  by  the  madness,  pride,  and  haughtiness  of  an 
insolent  British  officer,"  and  that  all  Fayal  witnessed  this  act  of  his 
madness  ! 

But  if  there  ever  was  any  doubt  on  this  question  before,  Mr. 
Dabney  has  dispelled  it.  He  tells  you  that  Mad  Lloyd  had  been 
at  Fayal,  "  three  weeks  before"  this  affair,  "  and  boasted  that  he  had 
boats  built  expressly  for  cutting  out  American  privateers,  and  that  he 
would  destroy  them  wherever  he  found  them .'"  For  three  weeks,  then, 
Commander  Lloyd  had  harbored  this  confused  design,  which  his 
plain-faced  knavery  afterwards  put  into  execution  !  I  will  call  your 
Honors'  attention  to  the  particular  fact  that  the  Governor  of  Fayal, 
in  answer  to  the  note  of  "  the  commander  of  his  Britannic  Majesty's 
forces,"  says,  "  J  must,  however,  assure  you,  sir,  that  from  the  accounts 


24  BRIG    GENERAL    AKMSTKONG. 

which  I  have  received,  it  is  certain  that  the  British  boats  were  the  first 
to  attack  the  American  schooner."  Commander  Lloyd-  never  replied 
to  this  note,  from  the  same  guilty  consciousness  that  prevented  him 
from  signing  the  first ;  and  this  first  paragon  of  a  note  was  his 
last,  and  the  only  document  of  his  which  graces  the  history  of  this 
affair.  Why  did  he  not  support  this  letter,  then,  with  a  protest, 
signed  by  all  his  officers,  as  the  American  captain  did,  instead  of 
the  weak  and  falsified  affidavit  of  his  tool  Roderigo — this  perjured 
Lieutenant  Fausset  ?  The  answer  is  found  in  the  apology  of  Lord 
Bathurst — no  such  charge  could  be  made  1  Not  a  syllable  is 
uttered  against  the  United  States,  and  Portugal,  convicted  by  the 
open  declarations  and  recorded  testimony  of  Governor  K-ibeiro, 
permits  a  period  of  sixteen  years  to  elapse  in  silence. 

IN  1835,  this  claim  is  renewed  against  Portugal  by  Gen.  Jackson, 
in  the  letter  of  Mr.  Dickens  to  Mr.  Kavanagh.  At  that  date,  she 
did  not  pretend  to  deny  her  responsibility  on  the  grounds  after- 
wards assumed.  IN  1836,  Mr.  Forsyth  is  informed  by  Mr.  Kava- 
nagh [p.  30,  Doc.  14],  that  the  written  and  verbal  declarations  of 
the  Duke  de  Pamella  had  induced  a  belief  that  our  claims  against 
Portugal  would  have  been  adjusted  many  months  ago.  The  Duke 
de  Pamella  had  at  that  time  [as  is  admitted  in  the  letter  of  Count 
Tojal  to  Mr.  Clay,  on  p.  77,  Doc.  53],  renewed  the  demand  for  this 
claim  against  the  British  government.  IN  1837,  Mr.  Kavanagh 
informs  Mr.  Forsyth  [p.  33,  Doc.  14],  that  Portugal  considers  this 
claim  inadmissible,  because  the  force  at  Fayal  was  altogether  incom- 
petent to  protect  the  privateer  against  the  assailants,  and  mentions 
as  an  off-set  a  large  amount  of  property  destroyed  by  our  vessels 
sailing  under  the  flag  of  Artigas.  The  plea  here  set  up  of  the 
incompetency  of  the  force  at  Fayal  to  protect  the  General  Arm- 
strong, was  one  of  the  very  grounds  complained  of  by  Mr.  Sumpter, 
among  others,  in  his  letter  to  the  Marquis  de  Aguiar  [on  p.  10, 
Doc.  14],  in  which  he  said  he  did  not  wish  "to  enhance  tho  cen- 
sures which  may  be  due  for  so  ntter  a  destitution  and  incapacity  of 
self-defence  as  have  been  alleged  to  exist  at  Fayal."  As  for  the 


ARGUMENT   OF   SAM   C.    REED,   JR.,   ESQ.  25 

plea  of  compensation,  or  set-off,  I  need  not  tell  your  honors  that  it 
is  the  admitting  of  one  claim  to  counterbalance  another.  So, 
even  up  to  1837,  Portugal  directly  admitted  her  liability  to  the 
claimants. 

Now,  if  your  honors  please,  I  shall  show  that  this  claim  was  pro- 
secuted from  the  year  1818,  the  administration  of  Mr.  Monroe, 
down  to  the  year  1844,  the  administration  of  Mr.  Polk,  a  period  of 
twenty-six  years,  without  a  knowledge,  on  the  part  of  our  govern- 
ment, of  the  previous  admissions  of  Portugal,  or  the  existence  of  the 
correspondence  of  1814,  which  took  place  at  Rio  de  Janeiro, 
between  the  Marquis  de  Aguiar,  Lord  Strangford,  and  Mr.  Sump- 
ter. I  shall  show,  also,  that  Mr.  Kavanagh,  our  charge  at  Lisbon, 
made  continual  inquiry  of  our  government  for  this  very  correspond- 
ence, from  1836,  for  over  two  years.  And  that,  had  this  corres- 
pondence at  that  time  been  produced,  Portugal  never  could  have 
set  up  the  defence  which  she  afterwards  did,  charging  that  the 
Americans  first  violated  the  neutrality  of  her  port.  And  I  shall 
show,  hereafter,  that  this  very  correspondence  was  quietly  sleeping, 
like  our  friend  Dabney's  letter,  for  this  whole  period,  on  the  shelves 
of  the  archives  of  the  Department  of  State  of  the  United  States  1 

In  Mr.  Kavanagh's  letter  to  Mr.  Forsyth,  dated  January,  1836 
[on  p.  29,  Doc.  14],  he  says  :  "It  appears  that  representations  on 
the  subject  were  made,  in  1814,  to  Mr.  Sumpter,  then  Minister  of 
the  United  States  near  the  Court  of  Portugal,  at  Rio  de  Janeiro, 
and  there  is  no  record  in  the  archives  of  this  legation  to  show  the 
result  thereof." 

In  his  letter  of  May,  1831  [p.  34,  Doc.  14],  he  says  :  "I  am 
informed  that,  in  1814  or  1815,  General  Sumpter,  our  minister  at 
the  Portuguese  Court,  while  it  was  established  at  Rio  de  Janeiro, 
made  representations  of  the  case,  and  that  a  correspondence  thereon 
ensued  between  the  Portuguese  government  and  that  of  Great 
Britain,  but  I  have  no  knowledge  of  the  result,  and  there  is  no 
record  of  the  transaction  in  this  legation." 

In  his  letter  of  September,  1831  [same  page],  he  says  :  "  I  hare 


26  BEIG   GENERAL   ARMSTRONG. 

been  lately  informed,  by  a  gentleman,  that  a  correspondence  was  had 
with  the  British  minister,  in  relation  to  the  destruction  of  the  Gene- 
ral Armstrong,  but  he  was  unable  to  say  how  it  resulted.  I  have 
already  stated  that  there  are  not  in  this  legation  any  traces  of  tho 
correspondence  between  the  ministers  of  the  United  States  (my  pre- 
decessors) and  the  government  of  Portugal,  until  the  arrival  of 
General  Dearborn,  in  1822.  All  the  archives  were  probably  taken 
to  Brazil,  when  our  first  mission  was  established  there,  after  the 
emigration  of  the  Portuguese  Court  to  Rio  de  Janeiro,  in  1801." 

Again,' in  April,  1838  [p.  36,  Doc.  14],  Mr.  Kavanagh  writes  to 
Mr.  Forsyth :  "  I  have,  as  yet,  no  information  of  what  was  done  by 
General  Sumpter,  our  minister  at  Rio  de  Janeiro,  in  1814  or  1815, 
who  presented  the  case  to  the  consideration  of  the  Portuguese 
government,  then  established  there." 

Now  it  is  evident  that  Mr.  Kavanagh  failed  to  recover  this  claim, 
simply  because  he  was  not  furnished  with  the  correspondence  had 
at  Rio  de  Janeiro,  and  which  was  all  this  time  lying  on  the  shelves 
of  the  State  Department !  Well,  sirs,  as  late  as  November,  1842, 
I  addressed  a  note  to  the  State  Department  [p.  43,  Doc.  14],  call- 
ing its  attention  to  this  correspondence,  and  asking  for  copies  to  be 
made  out,  but  was  informed  that  the  Department  could  not  employ 
clerks  for  such  purposes.  [See  letter,  Mr.  Webster  to  Mr.  Reid, 
p.  '45,  Doc.  14.] 

In  1842,  under  Mr.  Tyler's  administration,  this  claim  was  again 
urged  against  Portugal  by  Mr.  Webster,  in  instructions  to  Mr. 
Barrow.  [See  p.  40  and  42,  Doc.  14.]  Mr.  Barrow  addresses  a 
uote  to  Senor  de  Castro,  and  is  informed  by  that  worthy  minister 
that  he  wishes  "  to  gather  some  further  particulars  to  elucidate  this 
business  ;  and  to  that  end,  he  will  repeat  the  necessary  orders  by  the 
next  packet!"  [p.  47,  Doc.  14.]  That  he  would  write  to  England 
again,  for  further  particulars  to  elucidate  this  business  ! 

I  now  come  to  an  important  part  of  the  history  of  this  case.  I 
think  I  can  show  conclusively  that,  at  this  juncture,  Portugal  had 
determined  to  make  a  master-stroke  of  diplomacy.  She  knew  that 


ABGUMENT   OF   SAM   0.    KEID,   JB.,    ESQ.  27 

for  twenty-six  years  this  government  had  never  once  alluded  to  the 
correspondence  had  at  Rio.  She  knew  that  Mr.  Kavanagh  had 
made  inquiry  for  it  at  Lisbon,  in  vain.  She  knew  that  her  safety 
depended  upon  the  concealment  of  this  correspondence.  She  knew 
that  if  this  correspondence,  containing  the  evidence  of  her  admis- 
sions of  liability  to  this  government,  was  either  lost  or  destroyed, 
we  could  not  make. out  our  case  against  her  !  She  believed  then, 
that  we  had  no  record  of  De  Aguiar's  letters,  or  that  of  Governor 
Ribeiro  !  We  had,  at  this  time,  no  evidence  that  England  had  ever 
apologized  or  paid  indemnity  to  Portugal.  This,  then,  was  the 
reason  why  she  wished  to  gather  further  particulars  to  elucidate 
this  business.  She  wished  to  consult  England  to  know  if  it  would 
be  safe  to  deny  her  liability,  upon  the  belief  that  we  had  no  evidence 
against  her  ;  and  well  was  she  advised  ! 

Having  received,  by  the  packet,  the  "particulars  to  elucidate 
this  business,"  Portugal  at  last  screws  her  courage  to  the  sticking- 
point,  and,  backed  by  England,  for  the  first  time  denies  this  claim, 
after  a  lapse  of  thirty  years,  and  charges  the  violation  of  her  neu- 
trality on  the  Americans  !  Let  us  examine  this  remarkable  docu- 
ment of  Senor  De  Castro,  which  will  be  found  on  p.  48,  Doc,  14, 
dated  3d  August,  1843.  He  says  :  "  The  accounts  received  "  [from 
England,  of  course]  "  all  agree  that  the  American  brig,  under  the 
pretext  that  four  boats  from  the  said  British  vessels  were  approach- 
ing her,  fired  upon  them,  killing  some  of  the  men  and  wounding 
others." 

"  It  is  alleged,  on  the  part  of  the  United  States,  that  these  boats 
contained  armed  men,  who  had  a  hostile  intention.  At  the  same 
time,  it  is  affirmed,  on  the  part  of  Great  Britain,  that  they  only 
carried  inoffensive  men,  who  were  going  ashore  from  their  ships,  on 
duty,  and  that  they  casually  met  the  American  brig  when  she  was 
preparing  to  leave  the  port  of  Fayal" 

"  The  government  of  his  Britannic  Majesty,  appreciating  the  rash- 
ness" [this  is  a  bad  translation  ;  it  should  read  "censuring  the  rash- 
ness "]  "  with  which  his  officers  acted  in  a  neutral  port  against  said 


28  BRIG   GENERAL    ARMSTRONG. 

brig,  without  first  recurring  to  the  authorities  of  the  country,  had 
no  hesitation  in  apologizing  to  the  Portuguese  government,  and  indem- 
nifying the  inhabitants  of  Fayal  for  damages  sustained  by  the 
firing  of  the  British  vessels." 

Here  is  where  the  wily  minister  overleaped  the  bounds  of  his 
sagacious  diplomacy.  England  did  not  intend  that  he  should  "elu- 
cidate this  business  "  that  far  !  For,  while  he  makes  a  vain  endea- 
vor to  escape  from  the  liability  imposed,  he  tacitly  acknowledges  it, 
and  very  clearly  discloses  the  interference  of  England  in  this  nego- 
tiation, and  the  fact  that  Portugal  would  never  have  contested  this 
claim,  but  for  the  interposition  of  the  known  influence  of  England 
to  delay  and  ultimately  defeat  the  recognition  and  payment  of  this 
just  demand.  He  asserts  here,  what  he  knew  to  be  false,  that  the 
apology  and  indemnification  made  by  England  was  a  voluntary  act 
of  generosity ! 

This  distinguished  diplomat  concludes  his  remarkable  State  paper 
with  the  following  piece  of  Blair's  rhetoric  : 

"  By  an  analogy  of  reasoning,  far  from  her  Majesty's  government 
being  considered  as  bound  for  any  indemnity  for  the  destruction  of 
the  American  brig,  it  would  have  every  motive  for  asking  and 
expecting  an  apology  for  the  attempt  committed  in  the  Portuguese 
territory  by  that  brig  ;  seeing  that  the  first  shot  was  unquestion- 
ably fired  by  her,  and  that  the  commander  did  not  previously  have 
recourse  to  the  authorities  of  the  country,  which  was  only  done  by 
the  American  consul  after  the  offensive  provocation  was  committed 
by  said  brig,  and  that  the  fatal  consequences  were  inevitable." 

In  this  letter,  Portugal  for  the  first  time  admits  that  England 
censured  the  rashness  of  Commander  Lloyd's  conduct.  Count  Tojal, 
in  his  letter  to  Mr.  Hopkins,  29th  September,  1849  [p.  34,  doc.  53], 
reiterates  it,  and  says,  "  that  it  is  well  known  that  the  British  govern- 
ment had  already,  in  1817,  disapproved  of  the  conduct  of  Commander 
Lloyd,  thereby  giving  satisfaction  to  his  Majesty's  government."  lu  his 
letter  to  Mr.  Clay,  9th  March,  1850  [on  p.  51,  doc.  53],  Count  Tojal 
says  :  "  In  1814,  the  government  of  her  Britannic  majesty,  through 


OP  SAM  0.   BEID,   JB.,   ESQ.  29 

Lord  Bathurst,  the  minister  of  foreign  affairs,  directed  Mr.  Canning, 
ambassador  at  Lisbon,  near  the  regency,  to  give  the  Portuguese 
government  a  verbal  satisfaction  for  the  occurrences  which  had  taken 
place,  and  which  resulted  in  the  destruction  of  the  privateer  General 
Armstrong,  in  the  port  of  Fayal,  justifying,  at  the  same  time,  the 
conduct  of  Commander  Lloyd,  in  regard  to  the  provocation  given  by 
the  American  privateer,  which  was  the  first  to  fire  upon  the  Eng- 
lish." Again,  in  his  letter  to  Mr.  Clay,  of  15th  May,  1850  [p.  62, 
doc.  53J,  he  says,  "It  was  owing  to  this  particular  circumstance 
that  the  government  of  his  Britannic  majesty  neither  disavowed  nor 
condemned  the  conduct  of  Commander  Lloyd  (as  it  has  been  asserted), 
being  of  opinion,  and  having  likewise  always  maintained,  that  the  con- 
duct of  Commander  Lloyd  was  fully  justified,  as  a  mere  act  of  retali- 
ation, provoked  by  the  hostilities  previously  commenced  by  Captain 
Reid."  And,  lastly,  Mr.  Figaniere,  the  Portuguese  minister  at 
"Washington,  in  his  labored  argument  to  Mr.  Clayton,  urging  him  to 
arbitrate  this  claim,  and  dated  9th  July,  1850,  the  very  day  Gene- 
ral Taylor  died  I  [at  p.  107,  doc.  53],  makes  this  remarkable 
admission  :  'the  British  government  did  not  censure  the  conduct  of 
Commander  Lloyd,  on  the  ground  that  the  neutrality  of  the  port  of 
Fayal  had  been  violated  by  the  privateer's  unprovoked  attack  on  the 
boats ;  nevertheless,  for  the  reasons  above  stated,  an  apology  was 
due  from  the  British  government,  and  accordingly  was  rendered  to 
that  of  Portugal  I"  Here  Mr.  Figaniere  admits  that  Lloyd  was 
censured,  but  not  on  the  ground  of  the  privateer's  unprovoked  attack 
on  the  boats,  but  on  the  ground  of  the  boats'  unprovoked  attack  on  the 
privateer  ! 

Sirs,  it  was  asserted  in  this  court,  the  other  day,  that  a  greater 
opportunity  was  afforded  to  ascertain  the  truth  from  the  lips  of  a 
living  witness  than  from  the  written  declarations  of  a  party.  I  do 
not  think  so.  For  it  is,  after  all,  the  language  of  the  witness  that 
carries  with  it  the  force  of  truth,  or  the  damning  falsehood  !  Com- 
pare these  miserable,  contemptible  equivocations  of  the  Portuguese 
ministers,  based  on  the  false  statements  of  Lloyd  and  Fausset,  and 


30  BRIG   GENERAL   ARMSTRONG. 

instructed  to  that  end  by  the  English  government,  with  the  bold, 
honest,  manly  statement  of  Charles  W.  Dabney.  No  comment  is 
necessary. 

Now  let  us  examine  into  the  motive  that  induced  "Mad  Lloyd" 
to  violate  the  neutrality  of  Portugal.  Mr.  Dabney  says  that  Lloyd 
had  been  in  Fayal  three  weeks  before,  and  had  boasted  that  he  had 
boats  built  expressly  .for  cutting  out  American  privateers.  In  the 
letter  of  the  British  consul,  William  Greaves,  to  the  go'vernor  of 
Fayal,  written  on  the  morning  of  the  27th  September,  1814  [p.  19, 
doc.  14],  he  informs  him  of  the  intention  of  Commander  Lloyd  to 
send  the  British  brig  Carnation  to  fire  on  the  General  Armstrong, 
and  says  that,  "if  the  said  brig  should  encounter  any  hostilities 
from  the  Castle,  or  your  excellency  should  allow  the  masts  to  be  taken 
from  that  schooner,  he  would  regard  the  island  as  an  enemy  of  his 
Britannic  majesty,  and  treat  the  town  and  Castle  accordingly." 
The  letter  is  a  translation  from  the  Portuguese  ;  but  the  language, 
"  allow  the  masts  to  be  taken  from  that  schooner,"  means,  if  his 
excellency  allowed  the  Americans  to  injure  their  vessel  in  her  hull, 
rigging,  or  masts,  he  would  regard  the  island  as  an  enemy,  &c. 
This  letter  shows  the  fixed  determination  of  Commander  Lloyd,  at 
the  moment  he  entered  the  port  of  Fayal,  to  avail  himself  of  the 
weakness  of  that  island  and  the  unprotected  condition  of  the  Ameri- 
can brig,  in  the  presence  of  his  formidable  naval  force,  to  capture 
the  brig  without  damage  to  her  hull,  rigging,  or  armament,  and 
make  her  a  useful  adjunct  to  the  naval  force  then  concentrating  at 
Jamaica,  of  which  this  squadron  was  to  form  a  part,  and  which  waa 
destined  for  the  expedition  against  Louisiana,  and  the  capture  of 
New  Orleans.  To  show  that  Lloyd's  fleet  did  form  a  part  of  this 
expedition,  Lieutenant  McKeever,  U.  S.  N.,  who  was  taken  prisoner 
in  the  action  of  the  American  gun-boats,  commanded  by  Captain 
Thomas  ap-Catesby  Jones,  with  the  flotilla  of  the  British  fleet  at  the 
attack  on  New  Orleans,  was  afterwards  confined  on  board  the  Plan- 
taganet,  Y4,  commanded  by  Captain  Lloyd.  And,  according  to 
James's  English  Naval  History,  voL  6,  p.  360,  we  find  that  the 


ARGUMENT   OF   SAM   C,    EEID,    JK,,   ESQ.  31 

frigate  Rota,  Captain  P.  Somerville,  afterwards  made  a  combined 
attack  upon  the  frontier  town  of  the  state  of  Georgia,  St.  Mary's, 
early  in  January,  1815.  It  was  simultaneous  with  the  burning  of 
this  capitol,  on  the  24th  August,  1814,  that  the  expedition  was 
formed  against  Louisiana  and  our  southern  coast.  Admiral  Coch- 
rane  sailed  from  Patuxent  on  the  19th  September,  1814,  to  con- 
centrate his  forces  at  Jamaica  for  that  purpose.  All  the  squadrons, 
and  the  reinforcements  from  England,  did  not  arrive  at  Jamaica 
uutil  the  24th  November,  1814.  Commander  Lloyd  had  been 
detained  at  Fayal  some  ten  days.  Admiral  Cochrane's  fleet  was 
delayed  at  Jamaica  from  the  19th  to  the  26th  November.  This  is 
from  the  account  given  of  "  A  Narrative  of  the  Campaigns  of  the 
British  Army  at  Washington,  Baltimore,  and  New  Orleans,  by  an 
English  Officer  who  served  in  the  Expeditions'"  [see  p.  242  to  260]. 
General  Jackson  arrived  at  New  Orleans  on  the  2d  December,  1814.- 
Cochrane's  fleet  did  not  arrive  until  four  days  afterwards.  If  this 
fleet  had  arrived  one  week  sooner,  nothing  could  have  prevented  the 
British  from  marching  into  New  Orleans,  taking  that  city,  and  the 
possession  of  the  coast  as  high  up  the  Mississippi  river  as  they  could 
hold  it  [see  Major  A.  L.  Latour's  Historical  Memoir  of  the  War  of 
1814-15,  pp.  63  and  112].  This  defence  of  the  Armstrong,  then, 
evidently  saved  Lousiana  from  the  hands  of  the  British. 

The  motive  for  capturing  the  Armstrong,  then,  was  a  double  one. 
Not  only  to  obtain  possession  of  this  vessel,  celebrated  for  her 
audacity  and  fast-sailing  qualities  (this  being  her  fifth  cruise),  but 
to  use  her  in  the  shallow  waters  of  Lake  Pontchartrain  and  the 
mouths  of  the  Mississippi,  in  the  attack  on  New  Orleans. 

Commander  Lloyd  cared  not  to  violate  the  neutrality  of  the  port 
of  Fayal  then,  when  it  became  his  interest.  When  did  England 
ever  stop  to  violate  public  law  or  private  right,  or  to  commit  any 
outrage  of  pillage,  or  plunder,  when  it  could  subserve  her  ends  ? 
When  did  she  ever  hesitate  to  pervert  the  truth  or  to  falsify  a 
fact? 

When,  sirs,  she  found  it  necessary  to  violate  the  neutrality  of 


32  BKIG    GENERAL   AJSM8TRONG. 

Portugal,  her  weakness  or  strength  was  not  taken  into  con- 
sideration. 

The  same  policy  is  carried  oat  to  this  day.  Have  we  not  seen 
of  late  the  most  glaring  outrage  committed  on  our  territory — com- 
mitted in  violation  of  this  same  solemn  compact — in  nttcr  disregard 
and  contempt  of  our  national  sovereignty— in  violation  of  the  sanc- 
tity of  the  holy  precincts  of  our  national  capitol — have  we  not  seen 
Mr.  Crampton,  the  British  minister,  in  violation  of  his  office,  his 
honor,  and  of  all  principle,  and  without  hesitation,  violate  the  neu- 
trality laws  of  our  country  ?  And  have  we  not  seen  a  British 
newspaper  in  New  York,  the  Albion,  deny  the  charge,  and  then  in 
extenuation  boldly  assert  that  Mr.  Crampton  acted  with  the  per- 
mission of  Mr.  Marcy — a  falsehood  only  equalled  by  that  of  Com- 
mander Lloyd. 

It  was  this  same  spirit,  when  this  capitol  was  attacked,  that  mado 
the  British  despoil  the  beauty  of  the  cold,  harmless  marble  statnary 
• — yonder  monument  to  our  gallant  band  of  .naval  heroes.  [Mr.  Reid 
here  pointed  to  the  naval  monument  in  front  of  the  capitol.] 

It  was  this  same  spirit  that  made  a  British  ruthless  villain  strike, 
with  his  sword,  the  pen  from  the  hand  of  the  "  muse  of  history " 
(whose  womanly  form  alone  should  have  protected  her),  saying 
that,  no  pen  was  needed  to  record  the  history  of  so  pusillanimous  a 
navy  as  ours  !"  Afterwards  the  gallant  Commodore  Thos.  ap- 
Catesby  Jones,  with  his  own  sword,  erased  the  calumny  with  the 
blood  and  death  of  that  British  officer  at  New  Orleans,  and  sent 
him  to  acknowledge  the  falsehood  into  another  world  !* 

Sirs,  the  page  of  history  still  stands  blurred  and  blotted  by 
British  falsehood.  Shall  not,  then,  the  pen  be  restored  to  the  hand 
of  the  muse,  the  false  and  disgraceful  record  be  expunged,  and  a 
fair  page  written,  dictated  by  the  decree  of  this  honorable  Court, 
establishing  the  holy  truth  ?  "  Magnet,  est  verifas,  et  pravalebit .'" 

*  The  British  officer  killed  by  Commodore  Jones  was  Lieut.  G.  Pratt,  of  H.  B.  M.  frigate  Sea- 
horse, and  the  marble  pen  which  he  carried  with  him  from  Washington,  as  a  trophy,  was  then 
in  his  writing-desk  aboard  of  that  ship  1 


\ 

ARGUMENT    OF   8 AM   C.    REID,    JR.,    ESQ.  33 

Well,  sirs,  on  the  10th  January,  1844,  a  letter,  purporting  to 
have  been  written  by  Mr.  A.  P.  Upshur,  Secretary  of  State  under 
Mr.  Polk,  and  signed  by  him,  declined  the  further  prosecution  of 
this  claim,  on  the  ground  that  "  argument  and  importunity  have 
been  exhausted,  and  this  government  can  see  nothing  in  the  circum- 
stance to  justify  or  warrant  it  in  having  recourse  to  any  other 
weapons"  [see  p.  54,  doc.  14].  I  then  urged  the  government  not 
to  abandon  this  claim,  aad,  at  all  events,  to  reply  to  De  Castro's 
letter,  and  leave  the  case  in  a  state  of  perpetual  demand  against  the 
Portuguese  government  [see  letter  of  Mr.  Reid  to  Mr.  Upshur, 
p.  54,  doc.  14].  Mr.  Upshur  having  been  killed  on  board  the 
"  Princeton,"  no  reply  was  received  to  this  letter,  and  the  Hon. 
Henry  Johnson,  United  States  senator  from  Louisiana,  was  informed 
by  Mr.  Calhoun,  who  succeeded  as  Secretary  of  State,  in  a  letter 
dated  August  5,  1844,  that,  "  The  case  of  the  General  Armstrong 
was  disposed  of  by  my  predecessor  upon  grounds  which  appear 
to  me  judicious  and  proper.  Of  this  Mr.  Reid  has  been  duly 
informed,  and  I  can  see  no  good  reason,  under  the  circumstances, 
for  renewing  the  claim,  or  for  continuing  a  correspondence  on  the 
subject." 

I  think  it  but  proper  and  just  here  to  remark  to  your  honors  that 
afterwards,  in  a  personal  interview,  Mr.  Calhoun  denied  ever  having 
written  this  letter,  and  stated  that  such  was  the  pressure  of  busi- 
ness in  the  department,  that  he  was  forced  to  rely  on  the  corres- 
ponding-clerk, as  it  was  as  much  as  he  could  do  to  sign  letters.  I 
am  of  opinion,  sirs,  that  the  letter  of  Mr.  Upshur  emanated  from  the 
same  source.  I  cannot  forbear  contrasting  this  conduct  of  those  in 
the  Department  of  State  with  a  story  told  of  Lord  Castlereigh,  who 
was  the  Premier  of  England.  It  seems  that  an  English  officer, 
travelling  on  the  Continent,  had,  for  some  unjust  cause,  been  impri- 
soned, and  his  effects  confiscated,  which  led  to  a  long  correspond- 
ence between  the  two  governments.  A  final  reply  having  been 
received,  the  British  officer  was  called  to  hear  the  result.  Seeing 
that  the  officer  still  looked  dissatisfied,  Lord  Castlereigh  impetu- 

4 


34  BBIQ   GENEKAL   ARMSTRONG. 

ously  said,  "  What  would  you  have  us  do,  sir  ;  go  to  war  about 
this  matter  ?" 

"  Yes,  sir,"  replied  the  oflScer,  promptly  ;  "  if  the  reparation  due 
the  honor  of  an  officer  of  England,  and  indemnity  for  the  injury, 
cannot  be  obtained  otherwise,  I  demand  that  you  should  go  to  war." 

"  You  are  right,  sir,"  said  Castlereigh  ;  "  you  shall  have  satisfac- 
tion ;"  and  satisfaction  was  obtained. 

The  honorable  coutt  will  perceive  that  these  very  refusals  of  the 
State  Department  to  prosecute  this  claim  further,  were  afterwards 
used  in  argument  by  the  Portuguese  ministers  to  show  the  weakness 
of  this  demand,  and  to  induce  this  government  to  arbitrate  the  case. 

The  State  Department  having  abandoned  this  claim,  and  refused 
even  to  reply  to  De  Castro's  letter,  Senator  Johnson,  of  Louisiana, 
introduced  a  resolution  in  the  Senate,  calling  for  all  the  correspond- 
ence and  documents  relating  to  the  claim  and  the  causes  which 
retarded  its  adjustment.  Under  that  resolution,  the  correspondence 
contained  in  Document  No.  14  was  published  in  December,  1845. 
Then  came  to  light,  for  the  first  time  since  these  despatches  had 
been  received,  the  proceedings  had  at  Rio  de  Janeiro,  in  1814, 
which  Mr.  Kavanagh  had  in  vain  so  repeatedly  called  for  ! 

This  correspondence  was  referred  to  the  Committee  on  Foreign 
Relations  of  the  United  States  Senate,  which  reported  on  the  19th 
May,  1846  [1st  sess.,  29th  cong.],  through  Mr.  Atherton.  After 
reviewing  all  the  facts  of  the  case,  the  committee,  in  commenting  on 
De  Castro's  letter,  say  : 

"  It  is  destitute  not  only  of  probability,  from  the  situation  of  the 
privateer  in  the  presence  of  a  British  squadron,  but  it  is  disproved 
by  all  the  correspondence  and  documents,  and  has  not  even  a 
shadow  of  foundation. 

"  In  addition  to  this,  it  is  a  position  entirely  new  on  the  part  of 
the  Portuguese  authorities,  assumed,  for  the  first  time,  by  them, 
nearly  thirty  years  after  the  events  occurred,  and  not  only  never 
assumed,  but  repeatedly  negatived  by  them,  when  the  facts  were 
recent  and  well  known." 


ARGUMENT  OF   SAM   C.    KEID,   JB.,    ESQ.  35 

"  Adverting  to  the  fact  that  no  reply  has  been  made  to  the  letter 
of  Senor  de  Castro,  the  committee  would  suggest  the  subject  for 
the  consideration  of  the  Department  of  State,  to  decide  whether 
further  proceedings  may  not  be  called  for  in  the  case." 

I  will  now  call  the  attention  of  this  honorable  court  to  the  report 
of  the  Committee  on  Naval  Affairs  of  the  United  States  Senate, 
made  in  January,  181*7,  2d  Session  of  the  14th  Congress.  This 
committee,  after  a  full  investigation  of  the  case,  at  that  time,  said  : 

"  It  is  the  duty,  no  doubt,  of  all  governments  to  extend  to  the 
person  and  property  of  the  citizen  all  the  protection  in  their  power. 
It  is  the  end  of  all  governments  to  do  so.  It  is  the  right  of  the 
citizen  to  make  known  his  wrongs  to  his  government,  and  it  is  the 
duty  of  the  government  to  seek  redress  by  such  means  as  it  may 
deem  expedient.  The  neutrality  of  Portugal  was  grossly  violated 
in  the  case  of  the  private  armed  ship  General  Armstrong,  It  was 
the  duty  of  that  government  to  preserve  her  neutral  character,  and 
to  protect  the  brig  and  all  on  board  from  any  hostile  attack,  while 
in  her  port." 

"In  principle,  the  committee  can  see  no  distinction  between  a 
private  armed  ship  and  a  merchant  ship  ;  nor  between  property 
captured  and  converted  to  the  use  of  the  captors,  and  property 
destroyed  by  a  third  party  omitting  to  do  its  duty." 

So  far  back,  then,  as  1817,  it  was  the  opinion  of  the  Senate  of 
the  United  States,  and  expressly  charged,  that  England  had  com- 
mitted the  breach  of  neutrality,  and  the  responsibility  of  the 
government  of  Portugal  for  all  loss  occasioned  by  such  breach  is 
expressly  averred. 

But,  sirs,  let  us  go  further  back,  and  see  how  many  administra- 
tions have  acknowledged  the  justice  of  this  claim  ;  because  it  is 
asserted  in  the  brief  of  the  learned  solicitor  that  but  one  adminis- 
tration ever  acknowledged  it. 

We  find  that  under  the  administration  of  Mr.  Madison,  who 
served  two  terms,  Mr.  Monroe  acknowledged  it.  Under  the  admin- 
istration of  Mr.  Monroe,  who  served  two  terms,  Mr.  Adams  acknow- 


36  BRIG  GENERAL  ARMSTRONG. 

ledged  it.  Under  the  administration  of  General  Jackson,  Messrs. 
McLane,  Dickens,  and  Forsyth  acknowledged  it ;  and  under  the 
administration  of  Mr.  Tyler,  Mr.  Webster  acknowledged  it.  Here, 
then,  for  twenty-eight  years,  there  was  a  continual  acknowledg- 
ment, on  the  part  of  this  government,  of  the  justice  of  this  claim, 
besides  two  solemn  admissions  and  declarations  on  the  part  of  the 
Senate  of  the  United  States,  the  last  which  recommended  its 
reference  back  to  the  Department  of  State,  notwithstanding  the 
expressed  opinions  of  those  in  the  Department,  that  "  argument  and 
importunity  had  been  exhausted,"  and  that  they  could  see  no  good 
reason,  under  the  circumstances,  for  renewing  the  claim,  or  for  con- 
tinuing a  correspondence  on  the  subject !" 

But  suppose  this  claim  never  had  been  recognized  by  the  govern- 
ment until  General  Taylor's  administration,  the  action  then  taken, 
npon  a  clear  understanding  of  all  the  facts  and  evidence,  is  conclu- 
sive. It  was  on  those  facts  that  General  Taylor  determined  to 
assert  the  national  honor — on  the  admissions  of  Portugal  and  Eng- 
land, and  not  on  the  representations  of  the  claimants,  that  he 
determined  to  procure  justice,  cost  what  it  would.  He  was  a 
soldier,  sirs,  and  knew  well  how  to  protect  the  honor  of  his 
country  I 

It  must  be  recollected  that  there  were  a  number  of  claims  besides 
this,  the  justice  of  which  Portugal  had  as  tenaciously  denied,  that 
caused  this  determined  action,  and  called  forth  the  high-toned,  dig- 
nified, but  firm  language  of  that  great  American  statesman,  Mr. 
John  M.  Clayton,  in  his  letter  of  instruction  to  Mr.  Geo.  W.  Hop- 
kins, of  the  20th  April,  1849.  I  will  read  a  few  extracts  : 

"  Sir  :  Your  despatch  of  the  llth  nit.  was  received  here  on  the 
9th  inst.  I  have  submitted  it  to  the  President,  and  represented 
and  explained  to  him  the  very  unsatisfactory  condition  in  which 
the  claims  of  citizens  of  the  United  States  upon  the  Portuguese 
government  have  been  permitted  to  remain — many  of  them  for  a 
long  series  of  years,  in  spite  of  the  repeated  remonstrances  of  the 
American  government,  and  the  untiring  efforts  of  successive  diplo- 


ARGUMENT   OF   BAM   0.    HEED,   JR.,    ESQ.  37 

matic  representatives  from  this  country,  who  have,  under  instruc- 
tions, again  and  again  vainly  appealed  to  the  government  of  Portu- 
gal for  their  adjustment  and  liquidation.  These  appeals  have  been 
encountered  by  harassing  delays,  until  at  length  the  patience  of  the 
claimants  and  of  their  government  has  become  exhausted.  Reluct-  . 
ant,  nevertheless,  to  take  any  steps  which  might,  by  possibility, 
hazard  the  amicable  relations  of  the  two  countries,  and  clinging 
still  to  the  hope  that  Portugal  is  not  obstinately,  bent  upon  closing 
her  ears  against  a  friendly  power,  by  perpetrating  the  wrongs  of 
which  we  complain,  the  President  considers  his  accession  an  auspi- 
cious moment  to  make  one  more  appeal  to  Portugal. 

44  The  injustice  done  as,  and  the  delay  of  redress,  would  justify 
the  severest  animadversion  in  speaking  of  these  outrages,  which  of 
late  seem  to  have  increased  in  number  and  magnitude,  in  a  direct 
proportion  to  the  impunity  with  which  they  have  been  hitherto 
inflicted.  In  the  intercourse  of  nations,  there  is,  and  ought  to  be, 
a  limit  to  such  ill-treatment,  beyond  which  endurance  ceases  to  be  a 
virtue.  That  limit,  it  is  believed,  will  soon  have  been  reached,  if 
Portugal  shall  still  continue  to  be  deaf  to  our  just  complaints. 
The  responsibility  must  needs  rest  with  her,  if  the  American  govern- 
ment should  be  forced,  by  a  sense  of  duty  and  of  self-respect,  into 
ulterior  measures  to  enforce  its  demand.  These  measures,  indeed, 
which  a  due  regard  to  national  honor  may  thus  render  necessary, 
belong,  as  you  will  understand,  to  the  consideration  of  a  distinct 
branch  of  the  government. 

"  The  oldest  case  of  wrong,  and  the  most  remarkable,  is  that  of 
the  privateer  General  Armstrong,  Captain  S.  C.  Reid,  destroyed  in 
1814  by  a  British  squadron,  under  the  guns  of  the  Portuguese  for- 
tress which  protects  the  harbor  of  Fayal,  after  a  defence  as  gallant 
and  memorable  as  any  act  recorded  iu  naval  annals. 

44  It  is  revolting  to  contemplate  such  a  succession  of  unfriendly 
acts  ;  exhibiting  a  studied  course  of  conduct  inconsistent  with  the 
relations  which  ought  to  subsist  between  Christian  powers.  It  is 
high  time  that  the  just  indignation  of  the  American  government 


38  BEIG   GENERAL   ARMSTRONG. 

should  be  aroused  and  directed  towards  the  protection  of  the  rights 
of  these,  our  suffering  citizens. 

"  It  is  under  these  circumstances — here  rather  adverted  to  than 
unfolded  in  detail — that  the  President  has  resolved  to  make  one 
more  attempt  to  procure  satisfaction  for  American  claimants,  and 
to  assert  the  national  honor  ;  and  in  this  resolve,  it  will  be  your 
duty  to  convince  the  Portuguese  government  that  he  is  in  earnest, 
and  will  not  be  turned  aside  from  his  purpose.  You  will  impress 
upon  Portugal  the  idea  that,  on  entering  upon  the  duties  of  his  high 
office,  as  Chief  Magistrate  of  the  United  States,  the  President 
determined  that  he  would  assert  the  rights  of  his  fellow-citizens 
upon  foreign  governments  ;  proceeding  upon  the  principle,  often 
avowed  by  our  government,  '  to  make  no  demand  not  founded  in 
justice,  and  submit  to  no  wrong.' 

"Yon  will  make  it  distinctly  understood  that  the  period  of  pro- 
crastination has  gone  by,  and  that  immediate  decision  is  demanded. 
Further  delay  will  be  construed  into  denial.  It  is  in  contemplation 
to  lay  before  Congress  the  result  of  this  final  appeal,  at  an  early 
period  of  the  next  session.  Should  it  so  happen,  unfortunately, 
that  a  satisfactory  answer  be  denied  or  withheld,  until  the  arrival 
of  the  period  for  making  the  purposed  communication,  the  subject 
will  then  be  submitted  to  that  body,  as  it  shall  at  the  time  stand  ; 
and  the  Portuguese  government  may  rest  assured  that  any  mea- 
sures which  Congress,  in  their  wisdom,  may  decide  upon  as  due  to 
our  citizens  and  country,  will  be  faithfully  carried  out  by  the 
Executive. 

"  In  presenting  this  view  of  the  subject  to  the  Portuguese 
government,  as  a  frank  avowal  of  a  fixed  determination  on  the  part 
of  the  United  States  government,  you  will  be  most  careful  to  repre- 
sent, at  the  same  time,  the  extreme  anxiety  of  the  President  to 
avoid  being  forced  to  suspend  or  interrupt  present  diplomatic  rela- 
tions with  Portugal ;  because  a  recourse  to  that  measure  would, 
most  probably,  prove  to  be  but  the  antecedent  to  reprisals." 

Sirs,  no  American  can  read  this  language  without  an  innate  thrill 


ARGUMENT  OF  SAM   0.    REID,   JR.,    ESQ.  39 

of  admiration  !  This  acton,  on  the  part  of  Mr.  Clayton,  was  the 
result  of  cold,  dispassioned  reflection.  He  had  thoroughly  investi- 
gated the  case.  He  had  closely  analyzed  all  its  features  and  prin- 
ciples. He  had  carefully  weighed  all  the  evidence  ;  he  had  calmly 
reviewed  all  its  legal  bearing  under  the  code  of  nations  ;  and  that 
distinguished  jurisconsult,  Castlereigh-like,  resolved  to  maintain  the 
honor  of  our  country,  and  the  rights  of  our  citizens.  He  deter- 
mined that  all  these  claims  should  be  paid,  or  he  would  accept  the 
payment  of  none.  They  had  at  this  time  agreed  to  pay  all  the 
other  claims,  without  reference  to  their  justice  or  injustice,  if  Mr. 
Clayton  would  consent  to  arbitrate  the  Armstrong  claim.  But 
Mr.  Clayton  well  knew  their  subtle  policy,  and  was  aware  of  the 
secret  intrigues  of  England.  Mr.  Bulwer,  the  British  Minister,  had 
called  on  Mr.  Clayton,  and  urged  the  acceptance  of  the  offer  made 
by  Portugal  ;  but  Mr.  Clayton  rebuked  his  impertinent  interference, 
for  he  well  knew  that  if  he  held  out,  that  Portugal  would  eventu- 
ally pay  this  claim  with  the  rest. 

We  have  seen,  by  the  correspondence  of  Messrs.  Hopkins  and 
Clay  with  Count  Tojal,  that  the  latter  unwittingly  disclosed  the 
fact  of  England's  acknowledged  admissions  of  her  guilt,  by  the 
apology  of  Lord  Bathhurst  and  the  indemnity  of  Lord  Castlereigh, 
which  was  pretended  by  De  Castro  to  have  been  an  act  of  magna- 
nimity, instead  of  the  result  of  a  peremptory  demand.  No  other 
proof  than  thT§  was  necessary  to  establish  the  liability  of  Portugal. 
To  this  day,  Portugal  has  never  abandoned  the  claim  against  Eng- 
land for  the  loss  of  this  vessel.  When  asked,  by  Mr.  Hopkins,  if  it 
was  ever  abandoned,  and  when  ?  Count  Tojal  remains  silent !  And 
I  defy  any  one  to  show  that  England  has  ever,  officially  or  in  any 
manner,  denied  that  Lloyd  had  not  first  violated  the  neutrality  of 
the  port  of  Fayal.  No,  sirs  ;  Lord  Bathhurst  and  Lord  Castle- 
reigh were  both  well  aware  of  the  fact,  and  the  only  evidence  to 
the  contrary  to  be  found,  in  all  the  record,  is  Lloyd's  letter  to 
Governor  Ribeiro,  steeped  in  damning  falsehoods  ;  as  for  his  poor 
tool,  Lieutenant  Fausset;  it  is  but  charity  to  pass  over.  But  if 


40  BRIG   GENERAL   ARMSTRONG. 

Lieutenant  Fansset  was  fight,  where,  then,  I  demand,  was  Eng- 
land's official  charge  against  Captain  Reid  ? 

Mr.  Clay  makes  a  demand  for  the  correspondence  between  Por- 
tugal and  England  which  led  to  the  apology  and  indemnification 
from  Great  Britain  :  Count  Tojal  again  silently  refuses  to  comply  ! 
What  does  Mr.  Clay  say  on  this  occasion  ?  In  his  letter  of  2d 
November,  1849  [on  p.  46,  Doc.  53],  he  remarks  : 

"Your  Excellency  cannot  mean  to  assert  the  deposition  of  Lieut. 
Fausset  to  be  an  information  obtained  and  procured  by  the  act  of 
insisting  upon  this  claim  by  the  United  States  government ;  nor  that 
the  Portuguese  government  was  not  in  possession  of  it  a  very  short 
time  after  the  occurrence  to  which  it  relates  ;  any  such  idea  is 
negatived  by  the  date  which  the  instrument  bears — the  27th  Sept., 
1814  ;  and  it  is  fair  to  presume  that  it  was  before  both  the  Portu- 
guese and  the  British  governments,  when  the  former  demanded,  and 
the  latter  accorded  satisfaction  for  the  outrage. 

"Your  Excellency  has  not  thought  proper  to  state  either  by 
whom  the  informations  have  been  furnished,  or  in  what  they  consist, 
by  means  of  which  it  is  now  sought  to  invalidate  all  the  testimony 
worthy  of  credit  upon  the  claim,  and  to  stultify  the  conduct  of  the 
then  sovereign  of  Portugal.  Supposing  these  informations,  if  any 
such  exist,  may  be  found  in  the  correspondence  which  has  taken 
place  between  the  governments  of  Portugal  and  that  of  Great 
Britain,  and  anxious  to  give  them  all  the  consideration  which  they 
may  merit,  and  which  may  be  necessary  to  the  most  perfect  under- 
standing of  the  whole  subject,  the  undersigned  submits  a  request  for 
copies  of  all  the  papers  presented  by  her  majesty1  s  government,  contain- 
ing the  diplomatic  correspondence  and  evidence  which  led  to  the  conces- 
sion of  an  apology  and  indemnification  from  Great  Britain.  If  this 
be  refused,  the  government  of  the  United  States  will  be  justified  in 
believing  that,  in  the  prosecution  of  that  branch  of  the  demand 
against  the  British  government,  it  was  maintained  and  proved  by  her 
majesty's  government  that  Commander  Lloyd  was  the  aggressor,  and 
the  American  claimants  the  injured  parties." 


ARGUMENT   OF   SAM   C.    EEID,   JK.,   ESQ.  41 

Now,  I  ask,  why  was  not  this  correspondence  produced,  and  the 
negotiation  conducted  on  fair  and  open,  honest  terms  ?  Because,  it 
would  have  proved  that  Lloyd  was  not  believed  by  his  own  govern- 
ment, and  it  would  have  denounced  him  a  liar,  which  the  statement 
of  Governor  Ribeiro  had  already  shown  !  To  shield  the  falsehood, 
her  Britannic  majesty  sends  an  official  letter  to  her  faithful  majesty, 
stating  that,  the  assertions  in  regard  to  such  censures  were  entirely  des- 
titute of  foundation !  Not  that  he  did  noi,  violate  the  neutrality  of 
the  port — no  official  letter  on  that  point — but  that  he  was  not  ceu- 
sured.  The  gross  misrepresentations  on  this  point,  and  the  miserable 
decrepitude  of  truth  on  the  part  of  both  England  and  Portugal,  are 
such,  that  I  leave  it  for  this  honorable  court  to  decide  if  either  are 
entitled  to  belief  ? 

It  must  be  admitted  that  it  was  a  most  one-sided  negotiation — 
they  having  had  the  benefit  of  all  our  correspondence,  even  to  the 
private,  letters  between  the  Department  and  the  claimants,  while  we 
were  kept  entirely  in  the  dark  ! 

On  the  peremptory  demand  being  asserted  to  Portugal,  she  pro- 
posed to  pay  all  the  other  claims,  if  the  United  States  would  agree 
to  arbitrate  the  General  Armstrong  claim.  General  Taylor 
peremptorily  refused,  in  accordance  with  his  previous  fixed  determi- 
nation "  to  assert  the  rights  of  his  fellow-citizens,  and  to  make  no 
demand  not  founded  in  justice,  and  to  submit  to  no  wrong." 

Final  instructions  were  then  sent  by  Mr.  Clayton  to  Mr.  Clay,  in 
the  dispatch  of  the  8th  March,  1850  [p.  68,  doc.  53],  which  says  : 
"  In  regard  to  a  reference  of  our  claims  to  an  arbiter,  which  has 
been  indicated,  the  President  has  directed  me  to  say  that  no  such 
course  will,  under  the  circumstances,  receive  his  sanction,  and  this  for 
reasons  too  obvious  to  need  enumeration. 

"  The  ship-of-war  sent  to  convey  these  instructions  and  to  receive 
the  answer  to  them,  will  await  a  reasonable  time  for  the  answer, 
and  if,  by  or  within  that  period,  satisfaction  is  not  given,  and  due 
provision  made  for  the  payment  of  our  citizens,  you  are  ordered  to 
demand  your  passports  and  return  to  the  United  States." 


42  BBIG   GENERAL   AEM8TJSONG. 

Mr.  Clayton  has  been  charged  with  bullying  Portugal,  and 
threatening  to  declare  war  against  her,  if  she  did  not  pay  these 
claims.  No  such  accusations  can  for  a  moment  be  sustained.  In 
hiSj  letter  to  Mr.  Hopkins  he  expressly  states,  "These  measures, 
indeed,  which  a  due  regard  to  national  honor  may  thus  render 
necessary,  belong,  as  you  will  understand,  to  the,  consideration  of  a 
distinct  branch  of  the  government." 

Again,  he  says,  "  It  is  in  contemplation  to  lay  before  Congress  the 
result  of  this  final  appeal  at  an  early  period  of  the  next  session"  The 
whole  matter,  then,  was  to  be  submitted  to  the  Congress  of  the 
United  States  for  its  decision,  and  this  charge  of  threatening  Por- 
tugal with  war  was  but  the  reiteration  of  the  English  press,  which 
went  so  far,  even,  as  to  substitute  England  for  Portugal  in  meeting 
the  responsibility  of  rejecting  this  claim  at  all  hazards.  The  United 
States  was  taunted  with  the  injustice  and  want  of  magnanimity  dis- 
played in  the  demonstration  of  a  naval  force  to  demand  the  payment 
of  this  claim.  And  yet  this  magnanimous  England,  and  her  Ameri- 
can adherents,  were  well  aware  of  the  fact  that  the  waves  had 
hardly  covered  over  the  track  of  her  own  national  ships  from  the 
shores  of  helpless  Greece,  whom  she  forced  to  pay  a  trumped-up 
demand,  without  a  shadow  of  right  or  justification  !  Portugal,  thus 
encouraged  and  sustained  by  England,  refused  to  comply  with  the 
demand,  and  Mr.  Clay  took  his  passports  and  left  in  the  war-steamer 
Mississippi  for  France. 

On  the  9th  July,  1850,  a  great  calamity  befell  the  nation,  and  the 
claimants,  by  the  death  of  General  Taylor.  Mr.  Fillmore  became 
President  of  the  United  States.  Mr.  Webster  succeeded  Mr. 
Clayton  as  Secretary  of  State,  and  three  days  afterwards,  about  the 
23d  July,  he  agreed  with  Mr.  Figaniere  to  arbitrate  this  claim  1 

I  contend,  here,  that  there  was  no  power  that  had  a  right  to 
reverse  the  decision  of  General  Taylor,  who  had  prepared  to  submit 
the  case  to  Congress  for  its  decision,  any  more  than  it  was  contended 
we  could  not  reverse  the  decision,  or  refuse  to  obey  the  decree  of 
Louis  Napoleon  I 


AKGTJMEKT   OF   SAM   0.    EEID,   JK.,    ESQ.  43 

The  fiat  of  this  great  republic  had  gone  forth  to  the  world.  This 
government  had  plighted  its  national  faith  and  honor,  and  solemnly 
declared  that  it  would  never  consent  to  arbitrate  this  claim.  No 
power  on  earth  had  the  right  or  the  authority  to  reverse  this  deci- 
sion bat  Congress.  It  had  passed  out  of  the  functions  of  the  State 
Department,  and  the  case  stood  appealed  to  the  Congress  of  the 
United  States.  No  succeeding  administration  had  any  control  or 
jurisdiction  over  the  case.  Such  was  the  unanimous  opinion  of  the 
Committee  on  Foreign  Affairs  of  the  United  States  House  of 
Representatives,  at  the  first  session  of  the  33d  congress,  composed 
at  that  time  of  some  of  the  most  distinguished  jurists  of  the  coun- 
try. Such  was  the  opinion  of  the  celebrated  attorney-general, 
William  Wirt,  in  the  cases  of  Pottinger  and  Spense  [see  Opinions 
of  the  Attorneys-General  of  the  United  States,  vol.  1,  p.  486]. 
Thus  was  the  honor  and  faith  of  the  government  repudiated  for  the 
first  time,  and  this  great  and  glorious  Republic  made  to  stand  in 
shame,  before  the  eyes  of  the  nations  of  the  world,  in  the  humiliating 
and  degrading  position  of  having  asserted  the  national  honor,  and 
afterwards  sullied  it  by  a  retraction  1 

But,  may  it  please  this  honorable  Court,  while  I  do  not  question 
the  reason  or  the  motive  of  Mr.  Webster  in  agreeing  to  submit  this 
case  to  arbitration,  I  do  not  hesitate  to  say  that  I  believe  he  com- 
mitted a  great  error  of  judgment.  His  was  certainly  not  an  act  of 
"intrinsical  indifference,"  "without  which,"  says  Puffendorf,  "all  the 
morality  of  human  action  is  inevitably  overthrown."  The  reason  why 
jMr.  Webster  agreed  to  refer  this  claim  to  arbitration  was  that  he 
felt  perfectly  confident  that  Louis  Napoleon,  as  President  of  the 
Republic  of  France,  would  decide  in  our  favor.  I  know  this,  because 
he  told  me  that  no  man  could  decide  the  case  against  us. 

Mr.  Webster  may  be  censured  for  this  act,  but  I  cast  no  reflec- 
tions on  his  character.  Daniel  Webster  has  erected  for  himself  a 
superstructure  of  grandeur,  over  which  the  fixed  meridian  sun  of 
his  genius  will  shine  resplendent  for  ever,  and  on  which,  no  act  or 
error  of  his  past  life,  can  for  a  moment  cast  the  slightest  shadow  I 


44  BRIG  GENERAL  ARMSTRONG. 

I  shall  now  proceed  to  evidence  to  your  honors  under  what  cir- 
cumstances the  government  of  the  United  States  accepted  the 
proposition  of  Portugal  to  arbitrate  this  claim,  and  the  nature  of 
that  proposition,  which  Mr.  Clay  had  not  only  been  instructed 
peremptorily  to  reject,  but  to  enforce  the  payment  of  this  particular 
claim. 

In  the  letter  of  Count  Tojal  to  Mr.  Clay,  of  the  6th  July,  1850, 
replying  to  the  final  demand  of  this  government,  is  presented  this 
extraordinary  proposition  : 

"  The  government  of  her  majesty,  animated  with  the  same  desire 
which  the  government  of  the  United  States  professes,  to  maintain, 
without  interruption,  relations  of  good  harmony  and  intelligence 
between  the  two  countries,  yields  to  the  force  of  circumstances,  and, 
without  again  reverting  to  the  justice  or  injustice  of  the  claims  presented 
by  the  government  of  the  U.  S.,  and  only  pro  bono  pads,  offers  to 
pay  the  said  mentioned  claims,  amounting  to  $91,727,  according  to 
Mr.  Clay's  account,  with  the  only  exception  of  that  of  the  privateer 
General  Armstrong. 

"  In  respect  to  this  claim,  the  undersigned  cannot  deviate  from 
the  proposal  heretofore  made  to  Mr.  Clay,  that  of  so  important  a 
claim  being  submitted  to  the  decision  of  a  third  power,  &c." 

It  is  true,  that,  at  first  blush,  no  exceptions  can  be  taken  to  the 
diplomatic  language  here  used,  as  well  as  to  the  manner  in  which 
the  proposition  is  put.  But  on  a  closer  examination,  the  infamy 
concealed  under  it  is  plain  and  palpable.  And,  sirs,  what  is  the 
induction?  Why,  it  is  this,  "  if  you  will  surrender  the  chastity  of 
your  honor,  by  agreeing  to  arbitrate  the  "General  Armstrong" 
case,  we  will  pay  all  the  other  claims,  without  reference  to  their  jus- 
tice or  injustice  !"  This  is  no  morbid  or  forced  construction,  because, 
antecedent  to  this  proposition,  the  wily  minister  makes  this  decla- 
ration : 

"Her  majesty's  government,  far  from  denying  justice  to  the 
government  of  the  United  States,  always  proposed,  in  the  respective 
answer  to  each  claim,  to  refer  them  to  arbitrators,  as  the  most  decor- 


ARGUMENT   OF   SAM   C.    BEID,   JK.,    ESQ.  4:5 

ous  and  adequate  mode  to  resolve  these  claims."  The  motive  for 
resisting  this  claim,  and  which  induced  Portugal  to  make  this  propo- 
sition, is  distinctly  declared  in  the  following  sentence  : 

"  Her  majesty's  government,  besides  the  arguments  contained  in 
the  notes  formally  addressed  to  the  government  of  the  United 
States,  finds  its  judgment,  and  the  manner  of  weighing  the  question  of 
the  privateer  General  Armstrong,  strengthened  with  the  opinion  of 
her  Britanic  majesty's  government,  which  has  always  deemed  this  claim 
of  the  United  States  unjust!" 

In  reply  to  this  proposition,  Mr.  Clay,  in  his  letter  of  the  1th 
July,  1850,  states,  "  that  the  instructions  of  his  government  do  not 
allow  him  to  entertain  any  proposition  which  has  not  for  its  object 
the  adjustment  and  Jinal  settlement  of  all  the  said  claims  without 
exception  ;  he  therefore  declines  to  accede  to  the  proposition  of  his 
excellency  as  above  stated,  to  pay  all  the  other  claims  except  that 
of  the  General  Armstrong,  and  to  refer  it  to  arbitration." 

Again,  in  his  final  letter  of  the  llth  July,  1850,  demanding  his 
passports,  Mr.  Clay  says  :  '"  This  proposition  does  not  admit  the 
justice  of  any  single  one  of  the  claims  to  which  it  refers,  but  merely 
states,  as  above  quoted,  that  the  government  of  her  most  faithful 
majesty  is  willing,  for  the  sake  of  peace,  impelled  by  the  force  of  cir- 
cumstances, and  without  considering  their  justice  or  injustice,  to  pay 

• 

some  of  rftem."  This  language  shows  that  Mr.  Clay  well  under- 
stood the  infamy  contained  in  the  proposition,  and  that  the  terms 
for  the  sake  of  peace  concealed  the  offer  of  the  purchase-money  for  the 
dishonor  of  our  government  1 

I  wish  here  to  substantiate  the  fixed  and  determined  resolution 
on  the  part  of  General  Taylor,  as  made  known  to  the  Portuguese 
government,  under  no  circumstances  to  consent  to  arbitrate  this 
claim.  While  the  negotiation  was  being  conducted  at  Lisbon,  Mr. 
Figaniere,  the  minister  resident  at  Washington,  was  duly  advised 
of  all  the  proceedings,  and  had,  in  the  meantime,  opened  a  corres- 
pondence with  Mr.  Clayton.  In  reply  to  a  letter  of  Mr.  Figaniere, 
urging  a  reference  of  this  case  to  a  third  power,  Mr.  Clayton,  on 


•46  BRIG  GENERAL  ARMSTRONG. 

the  30th  April,  1850  [p.  97,  doc.  53],  said  :  "The  undersigned,  in 
conclusion,  is  compelled  to  add  that,  should  the  Portuguese  govern- 
ment persevere  in  the  refusal  to  adjust  and  settle  what  are  believed 
to  be  the  incontrovertible  claims  of  American  citizens  upon  that 
government,  the  only  alternative  left  to  the  President  will  be  imme- 
diately resorted  to — the  submission  of  the  whole  subject  to  the  decision 
of  the  Congress  of  the  United  States,  whose  final  determination  as  to 
the  mode  of  adjustment  will  have  all  its  appropriate  and  legitimate 
influence  upon  the  course  of  the  executive." 

Again,  on  the  19th  June,  1850  [p.  186,  doc.  53],  in  reply  to 
Mr.  Figaniere's  trumped-up  and  obsolete  reclamations  on  this 
government,  as  a  set-off  against  our  demands  (and  which  shows  the 
weakness  of  his  defence),  Mr.  Clayton  says:  "In  conclusion,  sir, 
I  beg  leave  to  repeat  to  you  the  assurance  contained  in  my  note  of 
the  30th  May  last,  '  that  the  just  claims  of  the  citizens  of  this  coun- 
try upon  Portugal  will  lose  none  of  the  merit  which  characterizes 
them,  nor  any  portion  of  that  protection  which  this  government  has 
determined  to  extend  to  the  claimants,  by  the  resuscitation  of  such 
unfounded  pretensions." 

In  a  private  letter  [marked  F]  from  Mr.  Clayton  to  myself,  dated 
June  25, 1852,  he  says  :  "  General  Taylor  refused,  to  the  last  moment 
of  his  life,  to  submit  the  Armstrong  claim  to  arbitration.1' 

Now,  if  the  honorable  court  please,  I  shall  demonstrate  that  in 
consenting  to  submit  this  claim  to  arbitration,  the  government 
accepted  and  received  a  bonus  in  consideration  therefor.  The 
official  letter  of  Mr.  Webster  to  Mr.  Figaniere,  of  the  5th  Sept., 
1850  [p.  112,  Doc.  53],  expressly  declares  it.  He  says:  "The 
President  instructs  me  now  to  say  that,  sincerely  Dishing  to  pre- 
serve relations  of  amity  with  Portugal,  and  to  bring  pending  ques- 
tions to  an  immediate  close,  the  government  of  the  United  States 
accepts  Count  TojaVs  '  offer,1  in  behalf  of  his  government,  to  pay  the 
several  claims,  as  stated  in  Mr.  Clay's  note  ;  and  the  proposition  made 
by  the  same  authority,  to  refer  the  case  of  the  General  Armstrong  to 
arbitration,"  The  first  article  of  the  Convention,  afterwards  made, 


ARGUMENT   OF   SAM   C.    EEID,   JE.,   ESQ.  47 

also  expresses  it.  It  states  that  the  Queen  of  Portugal  "has 
assented  to  pay  to  the  government  of  the  United  States  a  sum  equi- 
valent to  the.  indemnities  claimed  for  several  American  citizens  (with 
the  exception  of  that  mentioned  in  the  fourth  article),  and  which 
sum  the  government  of  the  United  States  undertakes  to  receive  in  full 
satisfaction  of  said  claims,  except  as  aforesaid,  and  to  distribute  the 
same  among  the  claimants." 

We  have  seen  that  Portugal  not  only  objected  to  this  claim,  on 
pretended  principles  of  law,  but  to  all  the  claims,  on  the  same 
grounds  of  inadmissibility,  which  she  likewise  urged  the  United 
States  to  arbitrate.  All  these  claims  were  apparently  equally 
objectionable  to  her,  and  as  firmly  resisted  as  the  Armstrong  case. 
Then,  why  was  it  that  the  offer  was  not  made  to  pay  this  claim  and 
refer  the  others  to  arbitration,  as  she  had  yielded  to  the  force  of  dr+ 
cumstances,  and,  for  the  sake  of  peace,  was  willing  to  pay  all  the  other 
claims,  just  or  unjust  ?  Because,  sirs,  England  had  forbidden  her, 
and,  as  a  mere  dependency  of  Great  Britain,  she  did  not  dare  to 
disobey  her.  In  the  language  of  Count  Tojal,  who  cringingly  sup- 
plicates Mr.  Clay  to  separate  this  from  the  other  claims,  on  the 
infantile  plea  and  mortifying  admission  that  "The  subsisting  rela- 
tions between  her  most  faithful  Majesty,  and  that  of  her  Britannic 
Majesty,  oblige  him  to  communicate  to  the  British  government  all  that 
had  taken  place!"  [See  p.  77,  Doc.  53.]  What  does  this  reveal  ? 
It  reveals  that  England  had  instructed  Portugal  to  pay  all  the 
other  claims,  provided  we  would  agree  to  arbitrate  this  one  (she 
well  knowing  that  no  power  in  Europe  would  decide  in  our  favor), 
and  not  to  pay  any  of  the  other  claims,  only  on  the  condition,  and 
in  consideration,  that  we  would  arbitrate  the  Armstrong  claim  1 
Now,  sirs,  what  was  the  offer,  on  the  part  of  Count  Tojal,  that  the 
President  accepted  ?  Was  it  a  simple  offer  to  pay  all  the  other 
claims,  without  reference  to  the  Armstrong  claim  ;  or  was  it  a  con- 
junctive proposition  ?  If  it  was  not  a  conditional  offer,  why  did 
Mr.  Clay  refuse  to  accept  it  before  he  left  Lisbon  ?  Because,  he 
tells  you,  his  instructions  did  not  allow  him  to  entertain  any  proposi- 


48  BRIG   GENERAL   ARMSTRONG. 

lion  which  had  not  for  its  object  the  adjustment  and  final  settlement 
of  all  the  claims,  without  exception!  Will  it  be  pretended  for  a 
moment  that  it  was  an  unconditional  offer  to  pay  all  the  other 
claims,  whether  we  consented  to  arbitrate  this  claim  or  not? 
Would  Portugal  ever  have  consented  to  pay  those  claims,  if  we  had 
refused  to  arbitrate  this  one  ?  No,  sirs,  never — and  the  proof  is 
irrefragable  that,  in  consenting  to  arbitrate  it,  we  received  a  bonus 
in  the  payment  of  the  other  claims.  On  this  point,  alone,  I  contend 
that  the  government  is  responsible  to  the  claimants. 

We  next  charge  that  the  agreement  to  arbitrate  this  claim  was 
made  and  entered  into  without  our  knowledge  or  consent.  It  is 
shown  that,  on  the  5th  day  of  September,  1850  (the  very  day  I 
wrote  from  New  Orleans  to  Mr.  Webster),  the  President's  accept- 
ance of  Count  Tojal's  proposition  was  officially  communicated  to 
Mr.  Figaniere  ;  and  about  the  23d  of  July,  1850,  the  proposition 
had  been  verbally  accepted.  What  is  Mr.  Clayton's  testimony  on 
this  point  ?  In  the  debate  on  this  bill  in  the  Senate,  January  26th, 
1855,  Mr.  Clayton  said  : 

"  Well,  sir,  at  this  crisis,  when  all  the  other  claims  were  about  to 
be  paid — and  I  verily  believe  this  was  also  about  to  be  paid — the 
President  died.  Within  three  days  after  my  successor  went  into 
office,  he  agreed  to  refer  the  claim  to  the  Prince  Louis  Napoleon. 
I  know  that,  because  he  called  upon  me,  and,  in  the  course  of  the 
conversation,  notified  me  that  he  had  made  that  arrangement  with 
Mr.  Figaniere,  the  Portuguese  minister.  The  proposition  to  refer 
had  been  made  to  me  repeatedly.  It  seemed  as  if  they  were  willing 
I  should  choose  the  arbiter.  They  offered  to  refer  it  to  three  civi- 
lians, or  to  one  civilian,  or  to  any  crowned  head  in  Europe.  I 
refused.  I  thought  the  circumstances  of  the  case  so  clear  against 
that  government,  and  her  conduct  so  atrocious,  that  there  ought  to 
be  no  reference  of  a  claim  which  was  so  clearly  right." 

Again,  he  said  :  "  In  this  case,  the  claim  was  referred  to  the 
arbitration  without  the  consent,  and  without  the  knowledge  of  the 
claimant.  He  had  not  the  slightest  information  that  such  a  thing 


AEGITMENT  OF  SAM  C.   REID,   JR.,   ESQ.  4:9 

vras  in  progress.  The  papers  show  exactly  the  opposite  of  wbat  the 
honorable  Senator  [Mr.  Fessenden]  contended  for  in  this  respect. 
Within  three  days  after  the  matter  came  into  the  hands  of  my  suc- 
cessor in  the  office  of  Secretary  of  State,  he  agreed  to  refer  it.  I 
know  this,  of  my  own  knowledge.  At  that  very  moment,  the 
claimant  was  confidently  expecting  that  his  claim  would  be  paid. 
Other  claims  had  been  given  up,  and  he  had  every  reason  to  sup- 
pose that  this,  also,  would  be  paid.  The  claimant  wrote  to  the 
Department  for  information,  and  received  the  answer  which  was 
read  by  my  friend  from  Mississippi  [Governor  Brown],  that  the 
claim  had  been  referred.  Afterwards,  the  treaty  was  made,  in  pur- 
suance of  an  arrangement,  long  before  agreed  on,  between  Portugal 
and  this  government ;  and  the  reference  was  confirmed." 

And  again,  Mr.  Clayton  said  :  "It  will  be  remembered  that 
President  Taylor  died  on  the  9th  July,  1850.  On  the  18th  or  20th 
July,  Mr.  Webster  became  Secretary  of  State.  About  the  23d 
July,  the  Portuguese  minister  and  the  Secretary  of  State  agreed  to 
refer  the  Armstrong  case  to  the  arbitration  of  Louis  Napoleon,  on 
the  ground,  as  I  was  informed  by  Mr.  Webster,  that  "he  was  the 
President  of  a  Republic.  The  letter  that  was  read  by  the  Senator 
from  Mississippi  (Governor  Brown),  to  which  my  friend  referred, 
containing  the  remonstrance  of  Captain  Reid  against  the  reference, 
was  dated  the  26th  of  Aug.  Another  letter  (of  Mr.  Reid),  asking 
an  opportunity  to  be  heard  before  the  negotiation  should  be  settled, 
was  dated  in  September.  The  question  had  then  been  determined  j 
there  was  an  end  of  it ;  and  he  could  not  possibly  do  anything 
about  it." 

Then,  on  the  23d  of  August,  1850,  two  weeks  before  the  Presi- 
dent's official  acceptance  of  the  terms  had  been  communicated  to  Mr. 
Figaniere,  and  before  the  rumor  was  made  public,  Mr.  Clay  was 
solicited  by  Mr.  Webster  to  return  to  Lisbon,  and  conclude  the 
bargain,  which,  for  reasons  highly  honorable  and  worthy  of  Mr. 
Clay,  he  declined. 

But  still  it  is  asserted  that  we  acquiesced  in  this  arbitration ! 

5 


50  BRIG   GENERAL    ARMSTRONG. 

Now,  sirs,  what  is  acquiescence  ?  According  to  Noah  Webster,  it 
is  a  quiet  assent  •  a  silent  submission,  or,  a  submission  with  apparent 
content.  Capt.  Reid,  in  his  letter,  dated  at  New  York,  26th  August, 
1850,  to  Mr.  Webster,  says  :  "  By  the  recent  daily  journals,  rumors 
are  rife  that  the  claim  of  the  General  Armstrong  is  about  to  be' 
referred  to  some  foreign  power  for  arbitration.  This  mode,  at  best, 
being  considered  somewhat  problematical,  we,  the  claimants,  would 
respectfully  suggest,  whether  or  not  a  settlement  by  treaty,  or  con- 
yention,  may  not  in  your  opinion  be  preferable,  as  being  most  likely 
to  enable  us  to  obtain  our  demands  without  the  risk  of  a  failure  ?" 
Mr.  Webster  replies  to  this  letter,  on  the  29th  August,  1850,  that, 
"  after  due  consideration,  it  has  been  deemed  proper  to  accept  the 
offer  of  the  Portuguese  government  to  pay  all  our  claims,  excepting 
that  of  the  Armstrong,  &c."  This  due  consideration  took  place 
more  than  a  month  before  Capt.  Reid  had  ever  heard  it!  And  did 
Mr.  Webster,  at  that  time,  write  to  Capt.  Reid,  or  any  of  the 
claimants,  to  consult  them  or  advise  them  on  the  subject  ?  No, 
sirs,  they  were  not  taken  into  consideration.  I  wrote  afterwards, 
from  New  'Orleans,  on  the  5th  September,  1850,  requesting  the 
Department  "  to  make  no  final  arrangement  in  this  case,"  and 
requesting  it  "  to  be  left  open  until  I  could  have  a  conference,"  and 
hoping  that  "  no  steps  would  be  taken  which  would  compromise  the 
rights  of  the  claimants  until  I  could  see  Mr.  Webster."  In  reply, 
I  was  informed  that  the  offer  had  already  been  accepted,  and  the  fact 
announced  to  the  Portuguese  minister  !  Can  this  be  tortured  into 
a  quiet  assent,  or  a  silent  submission  1  But  for  a  further  explanation 
of  these  terms,  I  refer  to  Count  Tojal.  Sirs,  there  can  be  no  acqui- 
escence, no  consent  after  the  committal  of  an  act  of  wrong,  of  injury, 
or  violence.  The  victim  of  innocence  cannot  consent,  cannot  acqui- 
esce, after  the  perpetration  of  an  act  of  violence.  The  householder 
cannot  consent  after  the  crime  of  arson  has  been  committed.  What 
folly,  then,  to  talk  of  an  acquiescence  before  an  act  is  even  known 
to  be  in  contemplation,  or  after  its  consummation,  without  a  know- 
ledge df  its  existence  •,  the  very  essence  of  consent  is  the  yielding 


AKGUMENT  OF   SAM  C.   REID,   JB.,   ESQ.  51 

of  the  mind  to  a  proposition  laid  bare  to  it,  and  there  can  be  no 
consent  where  the  will  is  not  consulted, 

I  consider  that  the  Hon.  Mr.  Marcy,  in  his  letter  to  Hon.  J.  M. 
Mason,  Chairman  of  the  Committee  on  Foreign  Relations  of  the 
*  U.  S.  Senate,  dated  llth  Feb.,  1854,  lays  down  the  true  doctrine 
governing  this  principle.  He  says  :  "  I  cannot  countenance  the 
principle  that,  where  this  government  is  called  A  by  a  citizen  of  the 
United  States  to  interpose  for  the  purpose  of  recovering  claims 
against  any  other  government,  proceeds  in  good  faith^for  that  purpose, 
and  fails  in  its  object,  or  obtains  what  may  be  regarded  as  an  inade- 
quate indemnity,  it  places  itself  in  a  situation  to  be  called  on  to  pay 
the  claims,  or  to  satisfy  the  expectations  of  the  claimants.  Our 
government  is  but  an  agent  in  such  cases,  and  unless  it  acts  against 
the  express  or  known  wishes  of  those  who  have  invoked  its  interposition, 
it  does  not,  as  I  conceive,  incur  any  liability  whatever  to  the  claim- 
ants." It  is  true,  this  letter  was  written  at  the  time,  with  a  view 
other  than  that  of  sustaining  the  claimants'  position,  but  I  shall  turn 
it  to  good  account.  And  now,  I  ask,  were  the  proceedings  had  in 
submitting  this  claim  to  arbitration  in  accordance  with  good 
faith  for  that  purpose  ?  Were  they  not  in  violation  of  the  good 
faith  of  the  nation  pledged  not  to  arbitrate  this  claim  ?  They  most 
certainly  were.  And  did  it  not  "  act  against  the  express  and  known 
wishes  of  those  who  had  invoked  its  interposition,"  by  informing  them 
that  their  objections  and  suggestions  were  too  late,  and  afterwards, 
by  concluding  and  ratifying  a  treaty  which  had  been  agreed  upon 
before  that  interposition  could,  by  any  possibility,  have  been  invoked  ? 

Again,  sirs,  after  this  treaty  was  made,  I  transmitted  an  argu- 
ment, in  behalf  of  the  claimants,  to  the  Department  of  State, 
requesting  that  it  might  be  forwarded  to  our  minister  at  Paris,  with 
all  the  documents  therein  referred  to,  in  order  that  the  claimants 
might  be  properly  heard  before  the  arbiter.  [See  letters  of  Mr. 
Reid  to  Mr.  Webster,  marked  B  and  C.]  The  department  refused 
the  hearing,  on  the  ground  that  the  terms  of  the  treaty  did  not 
permit  of  it.  I  then  asked  to  be  permitted  to  present  the  case  to 


V2  BBIG  GENERAL   AKMSTKONG. 

our  minister  at  Paris,  Mr.  Rives,  and  that,  through  him,  the  claim- 
ants might  be  represented.  And  was  informed  by  Mr.  John  J. 
Crittenden,  on  the  29th  September,  1851,  that  "it  is  not  competent 
for  this  Department  to  invest  you  with  any  manner  of  authority  to 
present  an  argument  in  the  case  of  the  General  Armstrong  5  nor* 
indeed  to  interfere  in  any  way  with  the  mode  of  submitting  the  case 
to  the  arbiter,  pr^rided  for  by  the  3d  article  of  the  convention." 
[See  letter  marked  D.]  Did  not  the  government  here  again  act 
moat  palpably  "  against  the  express  and  known  wishes  of  those  who 
had  invoked  its  interposition  ?"  I  hold,  therefore,  that  the  doctrine 
of  Mr.  Marcy  is  perfectly  sound  on  this  point. 

I  wish,  here,  to  show  a  strange  inconsistency  on  the  part  of  the 
opposers  of  this  claim;  While  it  is  contended,  on  the  most  weak 
and  shallow  testimony,  that  England  did  not  violate  the  neutrality 
of  Portugal,  and  that  we  did  acquiesce  to  the  arbitration,  they 
attempt  to  evade  the  responsibility  of  Portugal,  and  the  government 
of  the  United  States,  based  on  impregnable  evidence,  because  of  its 
insufficiency  I  But  I  shall  leave  the  honorable  court  to  determine 
on  the  weight  of  this  evidence,  with  the  single  remark,  that  had  it 
been  laid  before  the  Senate,  the  treaty  would  never  have  been 
ratified. 

Let  us  now,  for  a  moment,  take  into  consideration  this  treaty,  or 
convention,  by  which  the  rights  of  the  claimants  were  bartered 
away.  Upon  examination,  it  will  be  found  that  it  was  drawn  up 
without  a  strict  regard  to  the  protection  of  the  rights  of  the 
claimants,  and  that  it  was  made  in  violation  of  all  principles 
of  justice,  and  of  all  rules  governing  arbitration.  The  great 
feature  containing  the  very  essence  of  arbitration,  the  hearing 
and  determining  upon  the  law  and  the  facts,  was  entirely  omitted 
and  unprovided  for.  [See  Civil  Code  of  La.,  title  19,  p.  461] 
By  the  third  article  of  the  treaty,  it  will  be  seen  that  the  evidence 
of  the  case  is  confined  and  limited  to  the  "  correspondence"  which 
has  passed  between  the  two  governments  and  their  respective  repre- 
sentatives, and  that,  under  that  article,  the  claimants  were  not  only 


AJiGUMENT   OF   SAMUEL  0.    EEID,    JR.,    ESQ.  53 

denied  a  hearing,  but  the  most  important  and  essential  documents, 
consisting  of  Captain  Reid's  protest,  Consul  Babney's  letter,  and 
all  the  correspondence  of  "  1814,"  were  entirely  excluded  and 
omitted.  To  establish  this  fact,  I  refer  the  honorable  court  to  the 
•  letter  of  Mr.  Webster  to  Mr.  Hadduck,  charge  at  Lisbon,  dated 
March  20th,  1851  [p.  85,  Doc.  53],  in  which  he  says  :  "  I  have  just 
had  a  conference  with  Mr.  De  Figaniere,  and  it  has  resulted  in  my 
determining  to  yield  to  his  wishes,  that  the  papers  in  the  case  of  the 
General  Armstrong  may  be  transmitted  to  your  charge,"  &c. 
"  Whea  the  consent  of  the  arbiter,  whichsoever  of  the  two  it  may 
be,  shall  have  been  obtained,  you  will  proceed  to  carry  into  execu- 
tion the  stipulation  of  the  third  article  of  the  convention  ;  viz.,  to 
compare  and  authenticate,  jointly  with  the  Portuguese  government, 
the  copies  therein  specified.  You  will  understand,  of  course,  that  thes* 
copies  are  '  limited'  to  such  communications  as  have  passed  between 
the  American  Legation  and  the  Portuguese  government  at  Lisbon, 
and  between  this  Department  and  the  Portuguese  Legation  in 
Washington,"  &c.  It  will  be  remembered,  that  on  the  tth  July, 
1851,  I  solicited  the  Department  to  forward  my  argument,  and  thi 
documents  therein  referred  to,  to  our  minister  at  the  court  of  France. 
This  communication  caused  the  Department  to  examine  and  to  inquire 
into  the  instructions  just  read,  as  to  what  documents  had  been 
stipulated  upon  to  be  submitted  to  the  arbiter.  It  was  then  found 
that  the  whole  of  the  correspondence  of  "  1814"  had  been  omitted, 
which  caused  the  following  letter  to  be  written  expressly  by  the  De- 
partment to  Mr.  Hadduck,  dated  I%th  July,  1851  [p.  86,  Doc.  53], 
for  the  purpose  of  correcting  this  great  oversight.  "  To  provide,  how- 
ever, against  the  omission  of  any  important  part  of  the  earlier  portion  of 
the  correspondence,  I  mean  that  which  passed  in  1814  and  1815,  in 
Rio  Janeiro,  where  the  court  of  Portugal,  at  that  time,  resided,  and 
which,  it  could  not  have  been  intended  to  exclude,  I  transmit  to  you 
herewith  a  printed  copy  of  the  correspondence,  as  communicated  to 
Congress,  on  the  15th  December,  1845."  Well,  sirs,  just  one  month 
and  three  days  before  Mr.  Webster  signed  that  letter,  the  protocol 


54:  BRIG  GENERAL  ARMSTRONG. 

had  been  concluded  at  Lisbon,  and  sent  off  to  Paris,  without  inclod 
ing  this  evidence,  and  here  is  the  proof  of  it.  Mr.  Hadduck,  in  hia 
letter,  dated  Lisbon,  July  17th,  1851,  to  Mr.  Webster,  says  :  "  Sir, 
I  have  the  honor  to  inform  you  that,  on  the  9th  of  June,  I  met  her 
majesty's  Minister  of  State  and  Secretary  of  Foreign  Affairs,  at  the 
Foreign  Office,  for  conference  on  the  subject  of  the  protocol."  *  *  * 
"  With  these  slight  alterations,  the  instrument  was  signed  ttnd  sealed 
by  us  on  the  day  of  the  conference.  I  have  informed  our  minister  at 
Paris  of  these  proceedings."  Now,  on  an  examination  of  the  pro- 
tocol [marked  No.  1],  it  will  be  seen  that  no  particular  correspon- 
dence, or  evidence,  is  specified  therein,  to  be  laid  before  the  arbiter, 
while  it  contains  a  clause  to  "  bind  the  respective  governments,  and 
all  parties  interested,  to  submit  to  the  judgment  and  decision  of  said 
arbiter."  This  very  clause,  or  stipulation,  according  to  the  doctrine 
of  Mr.  Marcy,  then,  creates,  of  itself,  a  responsibility  on  the  part  of 
this  government  to  the  claimants,  in  case  the  claim  was  wrongfully 
or  improperly  submitted.  And  the  refusal,  on  the  part  of  this 
government,  to  allow  the  claimants  to  be  heard  through  their 
minister,  by  a  written  argument,  being  in  direct  conflict  with  the 
law  governing  arbitration,  attaches  and  fixes  on  this  government 
the  duty  and  obligation  to  indemnify  the  claimants,  which  cannot 
be  overthrown. 

But  may  it  please  the  honorable  court,  my  province  has  simply 
been  to  argue  this  case  upon  the  facts,  and  I  shall  leave  it  for  my 
learned  and  distinguished  compeers,  who  will  follow  me,  to  sustain 
the  principles  of  this  cause  upon  legal  authorities.  It  is  sufficient 
for  me  to  say,  that  the  most  distinguished  Senators  of  the  last  ses- 
sion of  Congress,  the  most  eminent  statesmen  and  jurisconsults, 
Messrs.  Cass,  Clayton,  Bell,  Brown,  Bayard,  Dodge  of  Iowa, 
Douglas,  Foot,  Houston,  Jones  of  Iowa,  Reid,  Rusk,  Seward, 
Thompson  of  New  Jersey,  Weller,  Wright,  And  others,  supported 
and  advocated  this  claim,  on  the  principles  I  have  maintained  before 
your  honors,  it  having  passed  the  Senate  to  a  third  reading  by  a 
majority  of  five.  And  I  refer  this  honorable  court  to  the  powerful 


ARGUMENT   OF   8AM   C.    BETO,   JR.,    ESQ.  55 

and  conclusive  argument,  on  this  point,  of  the  Honorable  Senator 
Bayard. 

Senator  Dawson,  of  Georgia,  who  took  the  opposite  side  of  this 
question,  thought  otherwise.  This  great  publicist  and  learned  com- 
mentator on  international  law,  thought  we  should  have  looked  to 
England  at  the  time  for  indemnification,  and  that  we  had  no  right 
to  call  on  Portugal !  This  advocate  of  Louis  Napoleon  and  his  just 
decree  was  of  opinion  that  the  claimants  had  no  right  to  be  heard, 
and  that  his  imperial  majesty,  Louis  Napoleon,  was  not  to  be  expected ' 
to  condescend  to  listen  to  the  argument  of  a  humble  citizen  of  the 
United  States  !  The  learned  senator,  on  reflection,  deemed  it  pru- 
dent to  suppress  this  portion  of  his  speech.  But,  sirs,  the  Hon.  Jas. 
A.  Bayard,  who  had  denounced  this  award  as  atrocious,  a  senator 
distinguished  for  his  profound  ability,  demanded  to  know  from  the 
Georgia  senator  what  panoply  and  majesty  covered  this  high  poten- 
tate of  France  that  he  could  not  condescend  to  be  instructed  by  an 
argument  ?  He  was  told,  sirs,  that  if  Chief-Justice  Marshall  could 
be  instructed,  and  the  Supreme  Court  of  the  United  States  have 
changed  their  opinions  by  condescending  to  hear  argument  of  coun- 
sel, there  was  nothing  in  the  character  of  this  Emperor  of  France 
that  prevented  him  from  being  instructed  as  well. 

The  honorable  ex-senator  from  North  Carolina,  Mr.  Badger,  who 
was  opposed  to  this  claim,  had  the  temerity  to  rebuke  Mr.  Bayard 
for  denouncing  the  award,  because  it  was  charging  Louis  Napoleon 
with  being  either  stupid  or  corrupt.  The  learned  ex-senator,  in 
arguing  a  cause  before  this  honorable  court,  the  other  day,  admitted 
that  senators  and  congressmen  frequently  made  speeches  for  Bun- 
comb,  and  this  may  have  been  a  buncomb  remark  of  his.  Is  it  not 
strange,  sirs,  how  circumstances  act  upon  the  human  will  and  warp 
the  judgment  of  the  human  mind  ?  Is  it  not  remarkable  that  a 
senator  upon  the  floor  should  not  be  able  to  see  and  understand  a 
clear  principle  of  law  and  equity,  which,  as  a,  feed  attorney  before  a 
court,  he  urges,  not  only  with  a  conviction  of  truth,  and  declares  his 
solemn  belief,  but  tells  you,  to  use  his  own  language,  that  here  he 


OO  BRIG   GENERAL   ARMSTRONG. 

has  "  no  dark  corners  in  a  district  to  dread  to  prevent  him  from 
doing  justice  !"  What  a  melancholy  and  humiliating  admission  to 
have  made,  and  how  repugnant  to  the  feelings  which  should  actuate 
senators,  who  are  the  judges  of  the  realm  and  the  great  conserva- 
tors of  the  rights  of  the  people  of  this  Union  ! 

And  now,  sirs,  let  us  examine  the  finding  of  this  award  of  Louis 
Napoleon.  Supposing  it  to  have  been  made  by  the  distinguished 
civilians  o£  France,  they  certainly  cannot  plead  ignorance  of  the 
rules  of  arbitration.  Have  they  done  their  duty  even  as  marked 
out  under  the  lame  articles  of  the  convention  and  protocol  ?  Where 
is  their  decision  on  the  public  law  in  the  case  ?  Not  one  word  upon 
the  point  submitted.  Where  is  there  a  decision  on  any  single  fact 
stated  ?  Why,  sirs,  the  case  is  decided  upon  an  entire  different 
theory  from  that  raised  either  by  Portugal  or  the  United  States. 
The  award  says,  "  considering  that  if  it  be  clear  that,  on  the  night 
of  the  26th  September,  some  English  long-boats,  commanded  by 
Lieut.  Robert  Fausset,  of  the  British  navy,  approached  the  Ameri- 
can brig,  the  General  Armstrong,  it  is  not  certain  that  the  men  who 
manned  the  boats  aforesaid,  were  provided  with  arms  and  ammunition. 
That  it  is  evident,  in  fact,  from  the  documents  which  have  been  exhib- 
ited, that  the  aforesaid  long-boats,  having  approached  the  American 
brig,  the  crew  of  the  latter,  after  having  hailed  them  and  summoned 
them  to  be  off,  immediately  fired  upon  them,  and  that  some  men 
were  killed  on  board  the  English  boats,  and  others  wounded — some 
of  whom  mortally — without  any  attempt  having  been  made  on  the 
pant  of  the  crew  of  the  boats  to  repel  at  once  force  by  force  /" 

This  statement  is  entirely  novel,  and  wholly  at  variance  with  the 
position  assumed  both  by  England  and  Portugal,  who  only  con- 
tended that  but  one  boat  was  unarmed,  while  the  award  considers  it 
uncertain  that  any  of  the  boats  were  provided  with  arms  and  ammu- 
nition! Why,  sirs,  they  were  not  even  guided  by  Lieutenant 
Fausset's  deposition.  Can  this  decision,  then,  be  said  to  be  based 
on  any  principle  of  law,  upon  the  evidence  placed  before  this  court, 
or  upon  any  reason  or  common  sense  ?  I  am  confident  it  cannot, 


ARGUMENT   OF   SAM   C.    REID,   JR.,   ESQ.  57 

and  there  is  not  a  court  on  the  face  of  the  earth  that  would  decide 
that  this  award  is  just.  It  is  conclusive,  therefore,  that  the  cor- 
respondence of  "  1814"  never  was  before  the  arbiter.  For  therein 
it  is  seen  that,  instead  of  all  the  boata  being  unarmed,  and  no 
attempt  being  made  to  repel  force  by  force,  the  fire  was  simul- 
taneous on  the  part  of  both,  and  that  the  first-lieutenant  of  the 
American  brig  was  wounded,  and  one  man  killed.  Then,  when  they 
found  the  evidence  to  be  imperfect,  why  did  they  not  act  like  just 
men,  and  call  for  further  testimony  ?  Because,  sirs,  justice  was  not 
to  be  expected  of  a  man  who  had  become  a  perjured  President,  by 
violating  his  oath  and  trampling  on  the  constitution  of  his  country  ! 
What  Guniker  writes  to  Ligurinus  may  well  be  applied  here  : 

"  When  falsehood  bare  and  undisguis'd  appears, 
It  never  can  deceive  ;  but  when  it  wears 
The  garb  of  truth,  it  cheats  the  heedless  ears  1" 

It  became  the  duty,  then,  of  this  government,  under  the  protest 
of  the  claimants,  to  set  aside  this  award,  if  it  did  not  wish  to  incur 
responsibility  to  the  claimants  ;  but,  having  confirmed  the  award, 
she  confirmed  her  responsibility,  and  there  is  no  escape  from  this 
conclusion.  But  if  this  award  now  precludes  the  claimants  by  its 
decision,  as  has  been  contended,  then  why,  I  ask,  did  not  the  deci- 
sions of  Congress,  the  decisions  of  the  different  administrations,  and 
the  settled  and  fixed  decision  of  President  Taylor,  asserted  on  the 
national  honor,  in  face  of  the  world,  before  preclude  the  reference 
to  arbitration  ?  It  was  repeated  to  Portugal,  that  the  "  Presi- 
dent of  the  United  States  would  never  compromise  the  dignity  of 
the  republic,  nor  abandon  the  just  rights  of  his  fellow-citizens  to 
attain  any  end  !"  Was  there  not  a  greater  Tiolation  of  good  faith 
in  reversing  the  decision  of  President  Taylor,  and  sacrificing  the 
national  honor,  than  there  would  have  been  if  the  government  had 
merely  reversed  the  decision  of  the  perjured  Louis  Napoleon  ? 

It  was  asserted  on  the  floor  of  the  Senate,  in  opposition  to  this 
claim,  that  it  would  be  a  dangerous  precedent  to  establish,  to  make 


58  BKIQ   GENERAL   AKMSTBONG. 

the  government  responsible  to  its  citizens  for  any  act  of  its  officers 
in  the  conduct  of  a  national  affair,  which  compromised  their  rights, 
and  that  no  such  act  can  be  binding  on  the  government.  Why,  sirs, 
do  we  not  see  the  government  daily  holding  its  citizens  responsible 
for  their  acts,  and  are  we,  in  this  free  and  enlightened  Republic,  to 
bo  told,  in  the  language  of  tyranny  and  oppression,  that  "  the  king 
can  do  no  wrong  !"  that  there  is  no  responsibility  resting  on  this 
government  towards  its  citizens?  Such  a  doctrine  strikes  at  the 
very  sub-stratum  of  the  compact  on  which  the  confederacy  of  this 
Union  was  formed.  We  know,  that,  in  forming  the  confederacy, 
each  State  gave  up  a  portion  of  its  rights  and  sovereignty  to  the 
general  government,  in  consideration  of  its  obligation  and  responsi- 
bility to  protect,  maintain,  secure,  and  defend  the  rights  of  its  citi- 
zens. I  find,  sirs,  in  the  proceedings  of  the  Congress  of  the  Confe- 
deration, an  address  to  the  several  States,  prepared  by  Mr.  Madison, 
Mr.  Ellsworth,  and  Mr.  Hamilton,  adopted  26th  April,  1183, 
holding  this  language  : 

Let  it  be  remembered,  finally,  that  it  has  ever  been  the  pride  and 
the  boast  of  America  that  the  rights  for  which  she  contended  were 
the  rights  of  human  nature.  By  the  blessings  of  the  author  of  these 
rights  on  the  means  exerted  for  their  defence,  they  have  prevailed 
against  all  opposition,  and  form  the  basis  of  thirteen  independent 
States.  No  instance  has  heretofore  occurred,  nor  can  any  instance 
be  expected  hereafter  to  occur,  in  which  the  unadulterated  forms  of 
republican  government  can  pretend  to  so  fair  an  opportunity  of 
justifying  themselves  by  their  fruits.  In  this  view,  the  citizens  of 
the  United  States  are  responsible  for  the  greatest  trust  ever  confided 
to  a  political  society.  If  justice,  good  faith,  honor,  gratitude,  and  all 
the  other  qualities  which  ennoble  the  character  of  a  nation,  and  fuljill 
the  ends  of  government,  be  the  fruits  of  our  establishments,  the  cause 
of  liberty  will  acquire  a  dignity  and  lustre  which  it  has  never  yet 
enjoyed,  and  an  example  will  be  set  which  cannot  but  have  the  most 
favorable  influence  on  the  rights  of  mankind.  If,  on  the  other  side, 
our  government  shall  be  unfortunately  blotted  with  the  reverse  of 


AKGUMENT   OF   SAM   C.    BEID,   JK.,    ESQ.  •   59 

these  cardinal  and  essential  virtues,  the  great  cause  which  we  hare 
engaged  to  vindicate  will  be  dishonored  and  betrayed,  the  last  and 
fairest  experiment  in  favor  of  the  rights  of  human  nature  will  be 
turned  against  them,  and  their  patrons  and  friends  exposed  to  be 
insulted  and  silenced  by  the  votaries  of  tyranny  and  usurpation." 
What  a  commentary  is  this  upon  the  act  of  the  government  in  deny- 
ing to  the  claimants  the  rights  of  human  nature  ?  I  appeal  to  this 
honorable  court,  and  ask,  whether  "justice,  good  faith,  honor,  gra- 
titude, and  all  the  other  qualities  which  ennoble  the  character  of  a 
nation,"  do  not  demand  that  the  claimants  should  be  indemnified  by 
their  government  ?  But  if  there  be  no  responsibility  in  this  case, 
upon  what  principle,  then,  is  the  forced  construction  of  an  act  of  a 
citizen,  construed  into  an  acquiescence  and  a  responsibility  to  release 
this  government  ?  The  illustrious  General  Washington  said,  in  his 
farewell  address,  "It  is  indeed  little  else  than  a  name,  where  the 
government  is  too  feeble  to  withstand  the  enterprises  of  faction,  to 

,  »• 

confine  each  member  of  the  society  within  the  limits  prescribed  by  the 
laws,  and  to  maintain  all  in  the  secure  and  tranquil  enjoyment  of  the 
rights  of  persons  and  property."  What  a  shadow,  what  a  thing  of 
air  becomes  this  government,  then,  when  all  these  cardinal  and 
essential  virtues  become  reversed,  exposing  «the  claimants  to  be 
insulted  and^ilenced  by  the  votaries  of  tyranny  and  usurpation  ! 

Sirs,  under  the  Constitution,  Congress  alone  has  the  power  to 
declare  war,  and  make  rules  concerning  captures  on  land  and  water. 
We  have  made  our  own  code  of  the  law  of  nations  in  this  regard — 
and  what  is  the  doctrine  as  laid  down  by  General  Washington  ?  In 
the  case  of  the  British  ship  Grange,  captured  by  the  French  frigate 
L' Ambuscade,  within  the  capes  of  the  Delaware,  in  1793,  the  Pre- 
sident then  said  :  "  Rather  than  employ  force  for  the  restoration  of 
certain  vessels  which  I  deem  the  United  States  bound  to  restore,  I 
thought  it  more  advisable  to  satisfy  the  parties  by  avowing  it  to  be 
my  opinion  that,  if  restitution  was  not  made,  it  would  be  incumbent 
on  the  United  States  to  make  compensation."  It  will  not  be 
denied,  but  that  this  decree  of  Louis  Napoleon  is  cruelly  disgraceful 


60  BRIG  GENERAL  ARMSTRONG. 

and  unjust.  And  what  is  its  effect?  The  government  of  tha 
United  States  is  placed  in  the  mortifying  and  humiliating  position 
of  having  prosecuted  and  supported  by  its  honor  an  unjust  claim  for 
thirty-five  years,  founded  only  on  falsehood.  This  it  is  made  to 
acknowledge  by  receding  from  the  high  ground  it  had  taken,  and 
consenting  to  submit  the  honor  of  the  country  and  the  rights  of  the 
claimants  to  arbitration.  It  stamps  Captain  Reid  and  his  officers, 
and  Mr.  Dabney,  the  consul,  as  convicted  perjurers,  and  elevates 
an  act  of  infamy  on  the  part  of  England  to  the  purity  of  truth. 
And  yet  it  is  said,  this  decree  is  final,  and  the  record  must 
stand!  . 

Sirs,  was  this  case  submitted  to  the  people  of  this  Union  to-day, 
their  unanimous  voices  would  denounce  this  decree,  and  declare 
justice  to  the  claimants.  In  this  spirit  I  ask  you  to  refer  to  the 
very  preamble  of  the  Constitution,  which  in  itself  constitutes  an 
appeal  to  your  equity,  and  covers  the  history  of  this  case.  That 
preamble  guarantees  and  secures  justice,  that  justice  which  we  seek. 
That  preamble  embodies  and  contains  the  very  essence  of  the  Con- 
stitution of  the  United  States,  "  ESTABLISH  JUSTICE,"  not  law,  which 
is  but  a  poor  substitute.  To  insure  domestic  tranquillity,  and  in 
providing  for  it  the  common  defence,  thereby  promoting  the  general 
welfare,  and  securing  the  blessings  of  liberty  to  those  who  perilled 
their  lives  to  establish  it — not  for  themselves,  but  for  posterity,  we 
ask  JUSTICE  at  your  hands. 

May  it  please  this  honorable  court,  my  task  is  done.  You  have 
before  you  the  full  history  of  a  case,  wherein  the  claimants  have 
been  for  nearly  half  a  century  gradually  sinking  under  wrong  and 
injustice,  until  life's  hope  expiring,  many  of  them  have  died  with  it 
unrequited  but  by  the  grave.  It  was  not  considered  by  them, 
whether  they  spilt  one  drop  of  blood,  or  their  whole  heart's  blood, 
in  defending  the  honor  of  their  country,  and  should  it  now  be  con- 
sidered by  this  honorable  court,  whether  a  precedent  can  be  found 
to  guide  ^  au,  while  you  have  the  Constitution  and  the  eternal  truth 
to  sustain  you  in  decreeing  JUSTICE  ? 


ARGUMENT  OF  PAM  c.   KEID,   JE.,   ESQ.  61 

And  I  now  submit  this  cause,  leaving  it  to  this  honorable  court 
to  determine  whether  the  stain  of  infamy  shall  be  obliterated,  the 
honor  of  our  countrymen  maintained,  and  the  truth  of  history  vin- 
dicated, or  whether  the  damning  and  atrocious  record  of  the  decree 
of  Louis  Napoleon  shall  remain  in  the  archives  of  the  national  State 
Department,  as  the  only  monument,  erected  by  this  government,  in 
gratitude  and  commemoration  of  the  act  of  this  heroic  Spartan 
band. 


BRIG   GENERAL   ARMSTRONG, 


REPORT  OF  THE  SPEECH  OF  P.  PHILLIPS,  ESQ. 

COUNSEL   FOR  CLAIMANTS,  IN  THE  CASE  OF  THE  PRIVATEER  BRIG  GENERAL 
ARMSTRONG.      COURT  OF  CLAIMS,  28TH   AND  29lH    NOV.,  1855. 

May  it  please  your  Honors — 

After  the  lengthened  narration  of  the  facts  and  diplomatic  cor- 
respondence connected  with  this  case,  to  which  your  attention  has 
already  been  called,  I  feel  that  I  should  make  some  apology  for 
consuming  still  more  of  your  time  in  a  further  investigation  of  the 
point,  that  the  neutrality  of  the  port  of  Fayal  was  invaded  by  the 
British  fleet,  under  Commodore  Lloyd,  and  that  the  conduct  of 
Captain  Reid,  commanding  the  privateer  General  Armstrong,  was 
not  only  distinguished  by  the  highest  gallantry,  but  justified  on  the 
principle  of  self-defence.  The  interest  of  this  question  cannot  be 
over-estimated,  whether  we  regard  it  as  determining  the  character 
of  what  our  people  have  heretofore  considered  one  of  the  brightest 
pictures  of  the  last  war,  or  affecting  the  right  of  the  claimants,  as 
now  presented  to  your*  Honors.  My  apology,  if  one  be  needed, 
must  be  rested  upon  these  considerations. 

The  testimony  shows  that  the  transaction  occurred  between  eight 
and  nine  o'clock  at  night ;  the  brightness  of  the  moon  enabling  all 
its  incidents  to  be  observed  by  the  citizens  of  Fayal  and  a  number 
of  strangers,  who  lined  the  shores  of  that  beautiful  bay.  [Dabney's 
and  Captain  Reid's  letters.] 

In  the  protest,  drawn  up  on  the  day  the  transaction  terminated, 
27th  September,  1814,  it  is  stated  that,  during  the  afternoon  of  the 


REPORT   OF   THE   SPEECH   OF   P.    PHILLIPS,    ESQ.  63 

26tb,  while  employed  in  taking  on  board  water,  and  about  sunset 
of  that  day,  the  British  brig  of  war  Carnation,  Captain  Bentham, 
appeared  suddenly  doubling  round  the  northeast  point  of  the  port. 
She  was  immediately  followed  by  the  Rota,  38  guns,  Captain 
Somerville,  and  the  74-gun  ship  Plantagenet,  Captain  Robert  Lloyd 
(commanding  the  squadron).  They  all  anchored  about  seven  o'clock, 
and,  soon  after,  some  suspicious  movements  on  their  part,  indicating 
an  intention  to  violate  the  neutrality  of  the  port,  induced  Captain 
Reid  to  order  his  brig  to  be  warped  in  shore,  close  under  the  guns 
of  the  castle  ;  that  in  the  act  of  doing  so,  four  boats  approached 
his  vessel,  filled  with  armed  men.  Captain  Reid  repeatedly  hailed 
them,  and  warned  them  to  keep  off,  which  they  disregarding,  he 
ordered  his  men  to  fire  on  them,  which  was  done,  and  killed  and 
wounded  several  men.  The  boats  returned  the  fire,  and  killed  one 
man  and  wounded  the  first  lieutenant ;  they  then  fled  to  their  ships, 
and  prepared  for  a  second  and  more  formidable  attack. 

The  second  attack,  after  midnight,  with  12  or  14  boats,  is  then 
narrated,  which  resulted  in  the  total  defeat  and  partial  destruction 
of  the  boats.  The  loss  of  the  Americans  being  "  one  lieutenant  and 
one  seaman  killed,  and  two  lieutenants  and  five  seamen  wounded." 
The  third  attack,  at  daybreak,  is  then  described,  and  after  protest- 
ing against  the  said  Lloyd  for  his  "  infamous  attack,"  and  against 
the  government  of  Portugal  for  failing  "  to  protect  and  defend  the 
neutrality  of  their  port,"  the  protest  is  sworn  to  by  Captain  Reid, 
Frederick  A.  Worth,  first  lieutenant  (brother  of  our  late  gallant 
General),  Robert  Johnson,  third  lieutenant,  Benjamin  Starks,  sail- 
ing master,  John  Brosnaham,  surgeon,  Robert  E.  Allen,  Captain 
of  Marines,  and  four  other  prize  masters  of  said  brig. 

These  statements  are  fully  corroborated  by  the  letter  of  our  then 
consul,  Mr.  Dabuey,  to  the  Secretary  of  State,  5th  October,  1814 
(American  State  Papers  Naval  Affairs,  494),  and  the  letter  of 
Captain  Reid,  14th  October,  1814,  to  be  found  in  the  same  vol., 
495.  These  letters  are  still  more  minute  than  the  protest,  in 
describing  the  details  of  events  which  brought  on  the  first  engage- 


64  BBtO  GENERAL  A&MSTBOHCL 

ment,  and  establish  beyond  a  doubt,  if  credited,  that  the  brig 
Armstrong  acted  wholly  on  the  defensive.  In  Mr.  Dabney's  letter, 
written  "  nine  o'clock  at  night,"  to  the  Governor  of  the  Island,  he 
complains  that  "his  Britannic  Majesty's  ships  had  ordered  four  or  five 
armed  boats  to  surprise  and  carry  off  the  American  armed  schooner 
General  Armstrong,  which  ia  lying  here  under  the  guua  of  the 
castle,  on  the  protection  of  which  che  regarded  herself  absolutely 
ia  security."  But  if  any  doubt  could  exist  upon  this  point,  it  would 
be  removed  by  the  letter  of  Charles  W.  Dabney,  our  present  consul, 
21st  May,  1853,  written  to  the  Secretary  of  the  State  (and  on  file 
in  his  department),  in  a  spirit  of  patriotic  indignation,  on  hearing 
of  the  award  made  on  this  claim.  He  says  that,  being  at  the  time 
about  21  years  of  age,  he  was  sent  by  his  father  to  recommend  Capt. 
R.  to  warp  his  brig  under  the  guns  of  the  castle,  his  father  appre- 
hending danger  as  soon  as  he  discovered  that  Lloyd's  fleet  was  in 
the  bay  ;  "  that  the  order  was  immediately  given  by  Captain  Reid, 
and  he  went  ashore.  He  then  says  :  "Just  as  I  was  landing,  ten 
minutes  after  I  left,  I  heard  the  report  of  musketry.  A  Captain 
Smith,  who  had  gone  on  board  to  see  Captain  Reid,  came  on  shore 
with  a  message,  informing  us  that,  while  in  the  act  of  warping  in, 
they  were  approached  by  four  boats,  containing  by  estimate  one 
hundred  and  twenty  men ;  that  they  were  warned  repeatedly,  not  to 
approach,  or  that  he  would  fire  into  them,  which,  instead  of  heed- 
ing, only  seemed  to  stimulate  their  exertions,  and  as  there  could  be 
no  mistake  of  their  intention  to  take  them  by  surprise,  no  attention 
being  paid  to  their  warning,  the  Captain  had  ordered  his  men  to 
fire,  which  was  immediately  returned  from  the  boats,  killing  one  man 
and  wounding  the  first  lieutenant,  but  having  found  their  reception 
too  warm,  they  sued  for  quarter,  which  was  immediately  granted. 
They  were  then  nearly  alongside  the  Armstrong."  The  whole  of 
this  letter  is  full  of  instruction  upon  the  point  now  in  issue,  and  is 
now  for  the  first  time  made  public.  An  accidental  conversation  with 
a  naval  officer,  recently  from  Fayal,  having  just  led  to  the  knowledge 
of  its  existence.  The  high  character  which  the  writer  enjoys  in  this 


REPORT   OF   THE   SPEECH   OF   P.    PHILLIPS,    ESQ.  65 

and  all  foreign  countries,  invests  his  statements  with  a  value  which 
cannot  be  over-estimated. 

It  will  be  remarked,  that  the  protest  is  sworn  to  by  all  the  officers 
save  one.  We  have  the  fact  that  the  first  lieutenant  was  wounded 
in  the  first  engagement ;  here  was  an  important  circumstance  sworn 
to  by  the  officer  himself,  corroborated  by  the  others.  A  still  more 
palpable  fact  was,  that  one  seaman  was  killed.  If  these  things  are 
not  true,  all  these  officers  have  committed  willful  perjury.  They 
are  not  circumstances  that  could  be  misstated  by  inadvertence,  and 
yet  the  English  defend  themselves  on  the  allegation  that  their  boats 
were  unarmed.  The  omission  of  the  name  in  the  affidavit  of  the 
second  lieutenant  corroborates  the  statement  that  he  was  killed,  and 
it  will  be  remembered,  as  lending  great  strength  to  these  state- 
ments, that  they  were  made  dura  fervet  opus — Captain  Smith  was 
an  eye-witness,  and  narrated  the  events  before  the  smoke  of  the 
battle  had  been  blown  away.  There  was,  therefore,  no  time  for  any 
pre-arrangement  of  a  falsehood,  if  we  could  suppose  the  parties  vile 
enough  to  intend  one,  or  so  foolhardy  as  to  attempt  misrepresenta- 
tion of  a  scene  witnessed  by  nearly  "  all  Fayal." 

Thus  far,  may  it  please  your  honors,  we  have  referred  to  American 
witnesses,  but  we  have  the  testimony  of  the  Portuguese  officials 
entirely  confirmatory  of  their  truth.  In  the  letter  of  the  governor 
to  his  superior,  of  the  28th  September  (Doc.  14,  p.  12),  he  writes, 
that,  having  received,  at  ten  minutes  past  nine,  of  the  26th,  a  note 
from  the  American  Consul,  "I  went  directly  to  the  castle,  and 
having  been  informed  of  the  circumstances  which  led  to  these  hostile 
proceedings,  I  learned  that  a  boat  had  been  sent  from  the  British 
ships-of-war  to  examine  the  privateer,  and  on  its  return  three  others 
had  been  sent,  armed,  and  that  the  captain  of  the  privateer  not 
wishing  to  allow  them  to  come  on  board  his  vessel,  a  fire  was  begun, 
on  loth  sides,  the  result  of  which  was,  that  the  second  officer  of  the 
privateer  was  wounded,  and  two  English  were  killed,  and  seven 
wounded."  From  the  position  of  the  castle,  jutting  out  into  the 
bay,  as  described  in  the  chart,  from  the  Secretary  of  State's  office, 

6 


60  BBIG  GENERAL  ARMSTRONG. 

its  occupants  had  a  most  excellent  opportunity  to  witness  distinctly 
the  order  of  events  ;  and  it  is  from  Portuguese  witnesses  we  have 
the  fact,  that  the  boats  attempted  to  board  the  privateer,  that  the 
fire  which  ensued  came  from  both  sides,  and  that  three  boats 
approached  while  one  was  returning. 

But  the  positive  terms  of  harshness  in  which  the  governor  speaks 
of  the  conduct  of  the  British  commander  is  more  conclusive  than 
any  narration  of  details.  He  describes -it  as  "  a  horrible  and  bloody 
combat,  occasioned  by  the  madness,  pride,  and  haughtiness  of  an  inso- 
lent British  officer,  who  would  not  respect  the  neutrality  maintained 
by  Portugal."  In  a  similar  strain  is  the  subject  treated  by  the 
Marquis  de  Aguiar  in  his  letter  to  Lord  Strangford,  Dec.  22,  copy 
enclosed  to  our  minister  Mr.  Sumpter  [Doc.  14,  p.  21].  "  Ou  a 
perusal  of  these  papers  his  excellency  will  observe  the  outrageous 
manner  in  which  that  commander  violated  the  neutrality  his  royal 
highness  had  resolved  to  maintain  during  the  war,  by  audaciously 
attacking  the  American  privateer  General  Armstrong,  in  the  port  of 
Fayal,  under  the  guns  of  the  Castle,  &c.  His  excellency  will  also 
observe  the  base  attempts  of  the  British  commander,  at  the  time  he 
commenced  the  unprovoked  attempt  on  the  American  privateer,  to 
attribute  those  violent  measures  to  the  breaking  of  the  neutrality  on  the 
part  of  the  Americans,  in  the  first  instance,  by  repelling  the  British 
armed  barges  that  were  sent  for  the  purpose  of  reconnoitering  that 
vessel,  advocating,  with  the  most  manifest  duplicity,  that  they  were 
consequently  the  aggressors.  But  what  appears  still  more  surprising 
is  the  arrogance  with  which  the  British  commander  threatened  to 
consider  the  territory  of  his  royal  highness  as  enemies,  should  the 
governor  adopt  any  measures  to  prevent  them  from  taking  possession 
of  the  American  privateer,  which  they  subsequently  plundered  and 
set  on  fire." 

When  it  is  considered  by  the  court  how  dependent  was  the  rela- 
tion of  Portugal  to  England,  and  how  reserved  and  cautious  JS  the 
general  tone  of  diplomatic  correspondence,  these  outbursts  of  indig- 
nation against  this  "insolent  British  officer"  afford  evidence  of  the 


REPORT   OF   THE    SPEECH   OF   P.    PHILLIPS,    ESQ.  67 

highest  degree  that  the  truth  of  the  American  version  had  been 
made  good  by  such  sources  of  information  as  left  the  marquis  no 
alternative  but  its  full  recognition.  The  marquis  not  only  denounces 
the  British  commander,  but  the  governor  himself.  "  The  censurable 
moderation  of  the  governor  during  these  outrages  would  have 
induced  his  royal  highness  to  have  immediately  caused  a  process  to 
have  been  instituted  for  the  punishment  of  that  officer,  did  not  the 
idea  of  his  having  been  governed  by  a  wish  to  guard  the  inhabitants 
of  that  island  from  the  ravages  and  evils  which  the  British  com- 
mander would  not  have  failed  to  commit,  merit  his  royal  consi- 
deration." 

Such  language,  so  bold  and  outspoken,  cannot  fail  to  convince 
your  honors,  that  when  these  transactions  were  fresh,  and  before  the 
finger  of  English  diplomacy  had  been  thrust  into  this  negotiation, 
the  aggressive  conduct  of  the  British  officer  at  Fayal  was  as  unre- 
servedly admitted  by  the  Portuguese  as  it  was  strenuously  insisted 
on  by  the  Americans  ;  and  more  especially  when  it  is  remembered 
that  it  was  directed  against  a  government  to  whose  generosity, 
energy,  and  wisdom,  the  Portuguese  governor  declares  his  people 
"  owe,  in  a  great  measure,  if  not  wholly,  the  fruits  of  peace."  [Doc. 
14,  p.  12.] 

Acting  on  these  well-ascertained  facts,  Portugal  insisted  upon  an 
apology  and  indemnity  from  the  English  government,  and  received 
them  in  1811  and  1818  ;  but  no  line  of  complaint  was  ever  addressed 
to  the  American  government  upon  this  subject. 

Subsequently,  and  when  the  influence  of  the  British  government 
made  itself  felt  in  Portuguese  diplomacy,  an  attempt  was  made  to 
break  the  force  of  this  important  admission  of  the  English  by  deny- 
ing the  conclusions  which  it  was  seen  would  inevitably  be  drawn 
from  it.  Our  minister,  Mr.  Clay,  in  reply  to  this  denial,  then  asked 
for  an  inspection  of  the  correspondence  which  had  passed  between 
the  Portuguese  and  English  governments,  that  it  might  be  fully 
seen  what  loere  the  grounds  assumed  and  conceded  for  this  apology 
<u»d  indemnity  ;  and  concluded  by  declaring  that,  if  the  correspond- 


68  BfilG  GENERAL 

ence  were  not  produced,  he  would  consider  it  as  proved  that  it 
would  show  Lloyd  to  have  been  the  aggressor.  In  all  the  subse- 
quent correspondence,  the  Portuguese  ministers  make  not  even  the 
slightest  allusion  to  this  request.  [Doe.  5%,  p.  46.] 

The  presumptions  necessarily  arising  out  of  the  faets  of  the  case 
are  no  less  strong  in  favor  of  the  claimants  than  is  the  direst  evi- 
dence. Chief  among  these  are — 1st,  The  disparity  between  the 
forces  engaged  rendering  it  improbable  that  so  weak  a  vessel  should 
draw  upon  itself  a  contest  which  could  not  result  otherwise  than  in 
its  destruction. 

2d.  The  approach,  in  the  night  time,  of  four  armed  boats  from  a 
hostile  fleet,  without  a  flag  of  truce,  or  other  indication  of  a  pacific 
character. 

•  These  presumptions  "are  the  result  of  the  general  experience 
of  a  connection  between  certain  facts  or  things,  the  one  being 
usually  found  to  be  the  companion  or  the  effect  of  the  other/  The 
connection  (it  is  admitted)  is  not  so  intimate,  nor  so  nearly  universal, 
as  to  render  it  expedient  that  it  should  be  absolutely  and  impe- 
ratively presumed  to  exist  in  every  case,  all  evidence  to  the  contrary 
being  rejected  ;  but  yet  it  is  so  general,  and  so  nearly  universal,  that 
the  law  itself,  without  the  aid  of  a  jury,  infers  the  one  fact  from  the 
proved  existence  of  the  other,  on  the  absence  of  all  opposing  evi-- 
dence.  [1  Greenleaf  Evidence,  sec.  S3.] 

This  rule  is  not  unknown  to  the  law  of  nations,  as  will  be  seen  in- 
the  case  of  the  Atlanta,  6  Rob.  Adml.  Rep.  440,  where  a  neutral 
vessel,  carrying  despatches  of  the  enemy,  it  was  held  as  a  conclusive 
presumption  that  they  were  hostile  [see  also  The  Pizarro,  2  Wheat, 
227,  242  ;  The  Hunter,  1  Dods.  Adm,  480], 

Opposed  to  all  this  accumulated  proof,  is  the.  British  account, 
contained  in  the  letter  of  Captain  Lloyd  to  the  governor  of  Fayal, 
and  the  affidavit  of  Lieutenant  Fausset  and  some  of  his  crew.  In 
the  former  it  is  stated  "  that  one  of  the  boats  of  his  Britannic 
majesty's  ship  under  my  command  was,  without  the  slightest  provo- 
cation, fired  on  by  the  American  schooner  General  Armstrong,  in 


KEPORT   OF  THE   SPEECH   OF   P.    PHILLIPS,    ESQ.  69 

consequence  of  which  two  mea  were  killed  and  seven  wounded.  In 
consequence  of  this,  I  am  determined  to  take  possession  of  that 
vessel,  and  I  hope  that  you  will  order  your  forts  to  protect  the  force 
employed  for  that  purpose."  It  is  important  that  your  honors 
should  observe  that  this  was  the  response  to  the  letter  of  the 
governor,  dated  "10  o'clock  at  night,"  for  if  it  be  established  that 
prior  to  that  hour  more  than  one  boat  had  encountered  the  brig, 
then  its  silence  as  to  others  would  be  a  fraudulent  suppression  of 
the  truth.  It  will  also  be  observed,  that,  in  his  letter  no  mention  is 
made  of  any  circumstances  explanatory  of  the  object  or  mission  of 
the  boat  of  the  Plantagenet,  then  lying  at  anchor  a  mile  from  the 
privateer.  This  omission  is  supplied  in  Fausset's  deposition,  though 
it  equally  ignores  the  existence  in  this  contest  of  any  but  "one 
boat." 

This  deposition,  dated  21th  September,  1814,  is  found  in  Mr. 
Clay's  letter  to  Count  Tojal  [Sen.  Doc.  53,  p.  42],  and  states 
"  that,  on  Monday,  26th  inst.,  about  eight  o'clock  in  the  evening,  he 
was  ordered  to  go  in  the  pinnace  or  guard-boat,  unarmed,  on  board 
her  majesty's  brig  Carnation,  to  know  what  armed  vessel  was  at 
anchor  in  the  bay,  when  Captain  Bentham,  of  said  brig,  ordered  him 
to  inquire  of  said  vessel  (which  by  information  was  said  to  be  a 
privateer).  When  said  boat  came  Dear  the  privateer,  the  Ameri- 
cans hailed  and  desired  the  English  boat  to  keep  off,  or  they  would 
fire  upon  her  j  upon  which  Mr.  Fausset  ordered  his  men  to  back 
astern,  and  with  a  boat-hook  was  in  the  act  of  doing  so,  when  the 
Americans,  in  the  most  wanton  manner,  fired  into  said  English  boat, 
killed  two  and  wounded  seven,  some  of  them  mortally,  and  this  not- 
withstanding said  Fausset  frequently  called  out  for  quarters  ;  said 
Fausset  solemnly  declared  that  no  resistance  of  any  kind  was  made, 
nor  could  they  do  it,  not  having  any  arms,  nor  of  course  sent  to 
attack  said  vessel.  Also  several  Portuguese  boats  at  the  time  of 
said  unprecedented  attack  were  going  ashore,  which  it  seems  were 
said  to  be  armed."  We  will  pass  over  the  singular  construction  of 
ihis  deposition  by  which  the  deponent  changes  his  narrative  from 


70  BBIG   GENERAL   AKM8TRONG. 

the  first  person,  and  speaks  of  himself  as  "  Mr.  Fausset"  and  "  said 
Fausset ;"  and  again  changes  from  the  present  tense,  "  and  solemnly 
declared,"  &c.  We  also  pass  over  the  singular  paragraph  with 
which  it  concludes,  all  tending  to  raise  serious  doubts  as  to  its 
genuineness  and  fairness.  In  this  affidavit  we  find  that  the  trans- 
action is  confined  to  the  privateer  and  "one  boat."  Not  the  slight- 
est mention  is  made  of  any  other  English  boats  having  been  fired 
into,  or  in  any  way  involved  in  an  encounter  with  the  brig.  The 
motive  of  the  approach  by  this  "  one  boat "  is  declared  to  have  been 
to  make  an  inquiry  merely  ;  and  as  the  order  was  to  inquire  of  the 
"  Carnation,"  one  of  the  English  fleet,  it  is  somewhat  singular  that 
Fausset  should  have  been  "  ordered  to  go  unarmed."  The  deposi- 
tion particularly  emphasizing  the  word  "  unarmed." 

The  statement  of  the  motive  of  the  approach  made  it  necessary 
to  limit  the  number  to  "  one  boat."  The  deposition,  therefore,  is 
very  clear  that  there  was  only  "one  boat" — that  boat  a  mere 
"  pinnace,"  and  "  unarmed." 

That  this  is  false  has  already  been  shown  ;  that  the  lieutenant 
knew  it  to  be  false,  is  seen  in  the  miserable  attempt  to  bring  into 
the  scene  of  action  "  several  Portuguese  boats  at  the  time  going  ashore, 
and  which  it  seems  were  said  to  be  armed"  It  is  hardly  necessary  to 
say  that,  if  Captain  Reid  had  fired  into  Portuguese  boats  and  killed 
and  wounded  their  men,  we  should-  certainly  have  seen  something 
of  it  in  the  letter  of  the  governor  of  the  Azores  ;  at  any  rate,  some 
representation,  if  not  demand  for  reparation,  would  have  reached 
our  government.  This  attempt  to  account  for  a  number  of  boats, 
miserable  as  it  is,  is  important,  as  showing  what  at  the  time 
was  pressing  upon  the  mind  of  this  officer  as  a  difficulty  neces- 
sary to  be  overcome — to  wit,  that  there  were  other  boats  in  hi& 
company. 

Your  honors  will  observe  that,  from  the  date  of  the  letter  from  the 
Marquis  de  Agniar  to  Lord  Strangford,  enclosed  to  our  minister, 
Mr.  Sumpter,  Dec.,  1814,  we  received  no  communication  from  the 
Portuguese  government  until  that  of  Senor  de  Castro's  addressed 


REPORT    OF    THE    SPEECH    OF    P.    PHILLIPS,    E8Q. 

to  Mr.  Barrow,  on  the  3d  August,  1843.  [Doc.  53.,  p.  14.]  This 
was  in  reply  to  Mr.  Kavanagh's  note,  of  17th  February,  1837,  and 
Mr.  Barrow's  note,  26th  May  and  10th  October,  1842.  After  near 
six  years'  delay,  the  minister  makes  a  response,  in  which,  after  express- 
ing his  surprise  at  the  appearance  of  this  claim,  "  after  a  silence  of 
so  many  years,"  he  says  that  "  the  necessary  orders  were  given  to 
proceed  to  the  most  exact  examination,  from  which  some  delay  has 
occurred  in  this  answer."  It  was  impossible,  without  them,  to  obtain 
a  thorough  knowledge  of  a  case  represented  in  said  notes  under  such 
serious  circumstances." 

Having  thus  made  this  "exact  examination,"^  says  :  "The  accounts 
received  all  agree  that  the  American  brig,  under  the  pretence  that 
four  boats,  from  the  said  British  vessels,  were  approaching  her,  fired 
upon  them,  killing  some  of  the  men,  and  wounding  others. 

"  It  is  alleged,  on  the  part  of  the  United  States,  that  these  boats 
contained  armed  men,  who  had  a  hostile  intention.  At  the  same 
time,  it  is  affirmed,  on  the  part  of  Great  Britain,  that  they  only  car- 
ried inoffensive  men,  who  were  going  ashore  from  their  ships  off  duty, 
and  that  they  casually  met  the  American  brig  when  she  was  preparing 
to  leave  the  port  of  Fayal." 

The  great  and  controlling  fact  alleged  by  the  American  officers  is 
thus,  after  the  most  "exact  examination,"  found  to  be  true  by  the 
Portuguese  minister  ;  and  the  value  of  this  finding  is  enhanced  by 
the  consideration  that  it  was  stated  by  one  who  was  seeking  every 
means  to  defeat  their  claim. 

Having  thus  determined  that  the  brig  was  approached  by  "four 
boats"  it  became  necessary  to  abandon  the  ground  that  the  motive 
was  peaceful  and  lawful  inquiry,  and  for  the  first  time,  it  is  alleged 
that  these  boats  were  going  ashore  off  duty,  when  they  casually  met 
the  American  brig,  an  allegation  not  only  novel,  but  in  direct  con- 
tradiction to  Fausset's  deposition,  and  wholly  inconsistent  with  the 
idea  that  Captain  Lloyd,  in  his  letter,  told  the  "  whole  truth." 

In  this  connection,  it  is  proper  to  remark  that,  down  to  this  period, 
the  deposition  of  Lieutenant  Fausset  had  never  been  alluded  to  iu 


i2  B^iia-   GliXERAL   ARMSTKONG. 

any  of  the  correspondence.  It  makes  its  first  appearance  in  tie 
letter  of  Count  Tojal,  written  to  Mr.  Hopkins  [Doc.  53,  p.  33],  on 
29th  September,  1849,  35  years  after  the  transaction,  and  after  the 
date  of  Lloyd's  letter  and  Fausset's  deposition,  and  when  driven  to 
the  wall  by  Mr.  Hopkins's  able  argument !  The  quotation  in  this 
letter  rendering  the  account  of  De  Castro  wholly  inconsistent,  the 
Count  is  necessarily  driven  back  to  the  position  of  the  British  offi- 
cers, and  his  statement  proceeds,  like  theirs,  wholly  to  ignore  the 
fact  of  there  being  but  "  one  boat,"  and  concludes  with  the  decla- 
ration "  that  this  serves  to  show  the  incorrectness  of  the  statement, 
that  the  barges  which  first  approached  the  privateer  were  four  in 
number,  and  all  armed  ;  whereas  the  first  was  alone  and  unarmed, 
and  consequently  the  fire  made  upon  her  was,  by  no  means,  pro- 
voked, and  especially  not  made  in  self  defence,  as  is  alleged." 

Your  honors  will  perceive  that  this  is  not  an  express  denial  that 
"  four  boats"  approached  the  Armstrong,  but  only  that  Fausset's 
was  the  "  first,"  nor  does  it  deny  that  there  were  boats  armed,  but 
only  that  Fausset's  was  not.  Now,  we  can  reconcile  all  the  state- 
ments upon  this  point.  It  will  be  remembered  that,  in  Captain 
Reid's  letter,  he  states  that  the  boats  came  from  the  Carnation. 
Fausset  admits  that  his  boat  did  advance  from  the  Carnation.  The 
evidence  also  shows  that  the  Carnation  was  anchored  within  half 
pistol-shot  of  the  Armstrong.  Now,  supposing  that  the  object 
being  to  surprise  the  privateer,  four  boats  put  off  from  the  Carna- 
tion, Fausset's  in  the  lead,  unarmed,  his  object  being  to  engage  the 
officers  of  the  privateer  in  a  parley,  and  thus  throw  them  off  their 
guard,  while  the  other  boats  came  up.  Fausset  fails  in  this  ruse  de 
guerre.  To  save  himself,  he  pushes  off  with  his  boat-hook,  and  is 
getting  out  of  the  way  when  the  other  boats  come  up  ;  the  fire  is 
opened  and  returned,  by  which  men  in  Fausset's  boat  are  killed  and 
wounded,  being  within  range  although  retreating.  Thus  Lloyd's 
letter  and  Fausset's  deposition,  as  to  the  fact  of  the  first  boat  being 
unarmed,  may  be,  true  without  at  all  invalidating  the  sworn  testi- 
mony of  all  the  American  officers,  of  Captain  Smith,  who  was  on 


EEPOltT   OF   THE   SPEECH   OF   P.    PHILLIPS,   ESQ.  73 

board,  and  detailed  the  transaction  a  few  minutes  after  it  occurred  ; 
of  the  governor  of  the  Azores,  from  information  derived  from  his 
people  at  the  castle  ;  from  the  Marquis  de  Aguiar,  and  finally,  as 
late  as  August,  1843,  from  De  Castro. 

Returning  now  to  an  examination  of  the  transaction,  as  tested 
by  the  probable  motives  of  the  parties,  and  by  their  character,  we 
find  the  commander  of  this  fleet  characterized  by  insolence  and  unre- 
strained daring.  The  testimony  of  C.  W.  Dabney  shows  that  he 
had  acquired  in  the  British  navy  the  title  of  "  Mad  Lloyd."  It  also 
shows  that  his  conduct  to  the  governor  of  the  Azores  was  over- 
bearing to  the  last  degree.  In  his  first  letter  to  the  governor, 
informing  him  of  his  intention  "to  take  possession"  of  the  Arm- 
strong, he  expresses  his  expectation  "  that  he  will  order  his  fort  to 
protect  the  force  employed  for  that  purpose,"  and  through  the  note, 
written  by  the  English  consul,  at  his  instance,  he  declares  that  he 
will  send  a  brig  to  fire  on  the  schooner,  and  that,  if  he  (the 
governor)  should  allow  the  masts  to  be  taken  from  the  schooner, 
he  would  regard  the  island  as  an  enemy  of  his  Britannic  majesty, 
and  would  treat  the  towu  and  castle  accordingly.  [Greave's  letter, 
27th  September,  1814.  Sen.  Doc.  14,  p.  19.]  Demands  such  as 
these,  requiring  a  neutral  government  not  only  quietly  to  submit  to 
an  invasion  of  its  rights,  but  to  share  in  its  own  degradation,  could 
only  proceed  from  a  madman  or  a  despot. 

But  it  is  not,  may  it  please  your  honors,  alone  for  the  purpose  of 
exhibiting  the  lawless  insolence  of  this  officer  that  I  refer  to  these 
letters.  They  contain  the  motive  which  induced  this  invasion.  The 
object  clearly  was  to  obtain  "possession''  of  the  privateer  ;  thence 
the  anxiety  that  the  governor  should  not  permit  the  "  masts"  to  be 
taken  from  her.  It  is  known,  as  a  historical  fact,  that  she  was  part 
of  the  fleet  ordered  to  rendezvous  at  Jamaica,  for  the  purpose  of 
attacking  New  Orleans,  and  this  light  draft  vessel  was  deemed 
important  for  the  navigation  of  the  Mississippi.  This  is  the  reason 
why,  although  the  brig  Carnation  had  anchored  within  pistol-shot, 
she  did  not  at  once  use  the  means  for  destroying  her.  Two  attempts 

5 


74  BKIO  GENERAL  ABMSTKONO. 

were  made  to  capture  her  by  boats.  These  failing,  the  Carnation 
made  a  demonstration  the  next  day,  but  ascertaining  that  capture 
was  impossible,  she  finally  resorted  to  destruction.  In  addition  to 
all  this,  we  have  the  letter  of  Mr.  Charles  W.  Dabney,  our  present 
consul,  already  referred  to,  testifying  that  Captain  Lloyd  had,  a  few 
weeks  before,  publicly  "  declared  in  Fayal  that  he  had  boats  pre- 
pared for  cutting  out  privateers,  and  that  he  would  take  them 
wherever  he  found  them." 

Again,  we  have  the  evidence  of  history,  that  such  violations  of 
neutrality  by  British  officers,  were  of  frequent  occurrence.  Mr. 
Monroe,  writing  to  Mr.  Sumpter,  on  3d  January,  1815  [Doc.  14, 
p.  20],  while  instructing  him  as  to  this  very  case,  says:  "The 
growing  frequency  of  similar  outrages,  on  the  part  of  Great  Britain, 
renders  it  more  than  ever  necessary  to  exact  from  nations  iu  amity 
with  them  a  rigid  fulfillment  of  all  the  obligations  which  a  neutral 
character  imposes,"  and  in  less  than  ten  days  after  this  occurrence, 
the  governor  at  Fayal  is  called  upon  to  witness  another  flagrant 
outrage  of  the  rights  of  his  port  by  another  British  captain.  On 
the  4th  October,  1814  [Doc.  14,  p.  19],  he  writes  to  Aceredo,  "  By 
my  letter,  of  the  28th  ult.,  your  excellency  is  informed  of  all  the 
painful  occurrences  which  have  taken  place  in  this  island,  on  the 
26th  of  that  month.  By  the  accompanying  copy,  No.  1,  your 
excellency  will  see  how  the  British  commander  Somerville  acted 
against  the  general  law  of  all  nations,  and  in  manifest  violation  of  the 
14th  article  of  the  Treaty  of  Commerce  and  Alliance  between  his 
Britannic  Majesty  and  our  Lord  the  Prince  Regent." 

We  have  now  gone  through  the  evidence.  In  this  long  proces- 
sion of  witnesses,  there  is  one  looked  for  but  not  found.  We  no- 
where see  the  British  consul.  From  his  residence  at  Pico,  at  the 
mouth  of  the  harbor,  he  sent  a  messenger  to  the  Plantagenet  as  she 
passed  his  island  home.  That  messenger  doubtlessly  informed  the 
commander,  as  did  the  pilot,  who,  and  what  it  was  that  carried  so 
saucily  the  "  bit  of  striped  bunting  "  that  was  floating  in  fancied 
security  under  the  guns  of  the  Portuguese  caetle.  The  consul  how- 


KEPOliT    OF   T1IK   SPEECH   OF   P.    PHILLIPS,    ESQ.  75 

ever,  nowhere  appears  among  those  British  officials  who  seek  to 
tarnish  one  of  the  brightest  actions  of  our  naval  history.  His 
absence  is  honorable  to  him,  and  speaks  volumes  in  favor  of  that 
judgment,  which,  iu  the  name  of  the  country,  and  in  vindication  of 
truth,  we  now  demand.  Let  this  controversy  for  indemnification 
terminate  as  it  may,  we  desire  that  the  fame  and  good  name  of  the 
gallant  officers  and  men  associated  with  this  memorable  transaction 
should  be  freed  from  the  stain  which  an  unjust  and  false  award  has 
stamped  upon  them. 

Assuming,  as  I  think  we  have  a  right  now  to  do,  that  the  British 
boats  approached  the  privateer  for  a  hostile  purpose,  it  can  scarcely 
be  necessary  to  adduce  authorities  to  prove  that  this  was  a  viola- 
tion of  the  neutrality  of  Portugal.  It  is  not  necessary  that  the 
measure  should  iu  itself  be  absolutely  hostile.  It  is  enough  that  it 
necessarily  leads  to  hostility.  '  [Wildman,  2  vol.,  148,  Twee  Geb- 
roeders  ;  3  Rob.  Admr.,  164,  Nancy  Bee,  p  7.] 

If  then  our  rights  have  been  invaded  iu  a  neutral  port,  and  our 
property  destroyed,  we  are  entitled  to  reparation.  It  is  no  answer 
to  our  demand,  that  Portugal  was  weak  and  unable  to  afford  pro- 
tection. Portugal,  as  a  sovereignty,  stands  among  the  Nations, 
demanding  equality  of  privilege.  She  is  entitled  to  it,  but  this 
right  carries  along  with  it,  equality  of  obligation.  Equal  privi- 
leges and  equal  obligations  go  hand  in  hand  ;  when  a  nation  can 
no  longer  fulfill  the  latter,  she  must  yield  up  the  former  and  be 
incorporated  with  some  other  nation  capable  of  discharging  national 
obligations.  There  is  no  measure  for  determining  the  obligations  of 
nations  according  to  their  strength,  any  more  than  there  is  for  deter- 
mining the  duties  of  individuals.  "  A  dwarf  is  as  much  a  man  as  a 
giant.  A  small  Republic  is  no  less  a  sovereign  state  than  the  most 
powerful  Kingdom.  Whatever,  therefore,  one  state  has  the  right 
to  do,  so  may  any  other,  and  whatever  one  state  ia  bound  to  do, 
so  mnst  every  other."  [Vattel's  Law  of  Nations,  Prelim.,  §  18,  19. 
Woodern  Lectures,  1  vol.,  p.  41.] 

These  great  principles  seem  to  me  to  be  sufficient  to  dispose  of 


76  BRIG   GENERAL   ARMSTRONG. 

this  point,  and  to  the  non-observance  of  them  may  be  attributed 
some  of  the  apparent  conflict  which  I  frankly  confess  is  to  be  found 
in  the  books.  The  most  of  the  learning  to  be  met  with  in  the 
elementary  treatises  has  reference  to  illegal  capture  and  restitution. 
The  principle  that  restitution  is  due  is  universally  admitted,  and  it 
is  difficult  to  understand  upon  what  reasoning  the  neutral  is  bound 
to  restoration,  which  is  not  equally  applicable  to  reparation  where 
restitution  is  impossible.  Chancellor  Kent,  speaking  on  this  subject 
says  :  "  It  is  not  lawful  to  make  neutral  territory  the  scene  of 
hostility,  or  to  attack  an  enemy  within  it  ;  and  if  the  enemy  be 
attacked,  or  any  capture  made  under  neutral  protection,  the  neutral 
is  bound  to  redress  the  injury  and  effect  restitution."  [1  vol.  Com., 
p.  122.]  I  do  not  find  that  the  obligation  of  restitution  is  at  all 
limited  by  the  power  of  the  neutral  government. 

The  case  of  liability  for  destruction  is  broadly  stated,  by  Molloy 
in  his  "Jure  Maritime,"  in  illustration  of  which,  after  reciting  nota- 
ble instances  of  adherence  to  neutral  rights,  he  says  :  "  But  they 
of  Harnborough  were  not  so  kind  to  the  English  when  the  Dutch 
fleet  fell  into  their  road  where  rid  at  the  same  time  some  English 
merchantmen,  whom  they  assaulted,  took,  burned  and  spoiled  ;  for 
which  action  and  not  preserving  the  peace  of  their  port  they  were, 
by  the  law  of  nations,  adjudged  to  answer  the  damage,  and  I 
think  have  paid  most  of  all  of  it  since."  [7  Edition,  B.  1,  C.  1,  p.  13.] 

It  was  questioned  whether,  in  cases  of  restitution,  the  expense 
should  not  be  borne  by  the  injured  party.  But  this  is  treated  by 
Bynkershoek  with  somewhat  of  scorn.  "  That  the  injured  party 
should  bear  the  expense  appears  to  me  to  be  very  unjust,  as  it  is 
the  duty  of  the  sovereign  of  the  territory  to  revenge  the  injury  done 
to  himself  ;  for  it  is  an  injury  done  to  him  to  violate  a  port  which  is 
equally  open  to  all  his  friends.  And  what  if  he  who  committed  the 
violation  goes  away  immediately  ?  Is  the  individual  whose  vessel 
has  been  taken,  to  make  war  at  his  own  expense  ?"  He  then  pro- 
ceeds to  cases  where  nations  have  entered  into  treaties  which  stipu- 
late that  the  Government  will  use  their  utmost  endeavors  that  the 


BEFOET   OF  THE   SPEECH   Of  P.    PHILLIPS,   ESQ.  77 

captured  property  should  be  restored."  And  says  :  "  If  it  be  the 
duty  of  the  sovereign  to  use  his  utmost  endeavors  to  effect  that  pur- 
pose it  follows  that  he  must  do  it  at  his  own  expense.  Nay  by 
going  to  war,  if  other  means  are  insufficient.  Such  is  the  law  which 
is  observed  among  all  nations,  (Bynkershoek's  Law  of  War,  by 
Duponccau,  p,  60.)  These  citations  maintain  the  only  true  rule 
by  which  the  relation  of  nations  can  be  safely  governed,  to  wit 
"  That  whenever  the  law  of  nations  imposes  a  positive  duty  ;  it  at 
the  same  time  imposes  a  positive  obligation  to  indemnify  for  losses 
sustained  on  account  of  the  non-fulfillment  of  that  duty." 

If  we  were  to  test  the  liability  of  Portugal  by  the  rule  contended 
for  by  her  own  ministers,  that  a  neutral  is  not  liable  for  losses  when 
she  employs  "all  the  means  in  her  power"  to  prevent  them,  it  would 
be  difficult  to  find  in  the  occurrences  an  escape  from  responsibility—^ 
for  no  means  but  two  imploring  notes  were  used  by  the  Portuguese 
officers. 

But  if  the  liability  of  Portugal  was  otherwise  doubtful,  our  own 
construction  of  the  law  of  nations  would  seem  to  be  conclusive. 
On  January  3rd,  1815,  Mr.  Monroe  to  Mr.  Sumpter  :  "  The  Presi- 
dent does  not  entertain  a  doubt  of  the  promptitude  which  the  Prince 
Regent  will  manifest,  particularly  when  he  is  informed  of  the  aggra* 
vated  nature  of  this  case.  You  are  requested  to  bring  all  the 
circumstances  of  the  transaction  distinctly  to  the  view  of  the  Por- 
tuguese government,  and  to  state  the  claims  which  the  injured 
party  has  to  immediate  indemnity."  [Doc.  14,  p.  20.] 

Mr.  Adams  to  the  Chevalier  Corrende  Serra,  March  14>  1818  .' 
"  Of  the  facts  of  the  case,  there  is,  and  can  be  no  question,  having 
been  ascertained  not  only  by  the  statements  of  the  injured  parties, 
but  by  the  official  reports  of  your  qwn  commanding  officer.  It  is 
hoped  your  government  will,  without  further  delay,  grant  to  the 
sufferers  by  that  transaction  the  full  indemnity  to  which  they  are  by 
the  laws  of  nations  entitled."  [Doc.  53,  p.  13.] 

Mr.  Dickens  to  Mr.  Kavanagh,  20th  May,  1835  :  "  The  Portu- 
guese authorities  at  that  place  (Fayal)  having  failed  to  afford  the 


78  BRIO   GENERAL   ARMSTRONG. 

vessel  that  protection  to  which  she  was  entitled  in  a  friendly  port 
which  she  had  entered  as  an  asylum,  the  government  is  unquestion- 
ably bound,  by  the  law  of  nations,  to  make  good  to  the  sufferers  all 
the  damage  sustained  in  consequence  of  the  neglect  of  so  obvious 
and  acknowledged  a  duty."  [Doc.  53,  p.  24.] 

Mr.  Webster  to  Mr.  Barrow,  15  January,  1842  :  "  Upon  receipt 
of  this  letter,  you  will,  without  delay,  make  yourself  acquainted 
with  the  circumstances,  and  address  a  note  to  the  minister.  The 
amount  of  the  claim  the  Department  will  not  attempt  to  fix  ;  but 
its  justness,  I  believe,  has  not  been  denied."  And  again,  on  18  August, 
1842  :  "  Both  these  claims  are  regarded  as  just  by  this  government, 
ar<d  will  not  be  relinquished  under  the  objections  heretofore  made  tc 
them  by  the  Portuguese  government,  which  are  entirely  unsatisfactory." 
[Doc.  53,  p.  40,  42.] 

Mr.  Clayton  to  Mr.  Clay,  8  March,  1850:  "If  within  that 
period,  satisfaction  is  not  given  and  due  provision  made  for  the  pay- 
ment of  our  citizens,  you  are  ordered  to  demand  your  passports,  and 
return  to  the  United  States."  [Doc.  53,  p.  68.] 

The  court  will  remark,  that  at  the  time  Mr.  Webster  declared 
that  "  the  claim  will  not  be  relinquished  under  the  objections  here- 
tofore made,"  Portugal  had  assumed  the  ground  now  attempted 
to  be  maintained  by  the  solicitor — that  her  weakness  and  inability 
to  afford  protection,  freed  her  from  responsibility  for  the  loss 
sustained.  [Kavanagh  to  Forsyth,  18  March,  1837.  4  Sept., 
1837.  Doc.  14,  p.  33,  34.] 

Under  these  repeated  assertions,  emanating  from  the  Executive 
of  this  government,  our  ministers  at  Portugal  continued  to  press 
the  claim,  as  one  founded  upon  the  law  of  nations,  and  uninfluenced 
by  the  question  of  the  relative  power  of  the  two  governments  of 
Portugal  and  England.  The  force  of  these  admissions  is  attempted 
to  be  broken  by  the  argument,  that  they  were  the  mere  statements 
of  an  advocate"  pressing  the  claim  of  his  client ;  with  proper  respect 
to  the  solicitor,  it  seems  to  me  that  this  comparison  is  derogatory 
to  the  dignity  of  the  government  which  he  represents.  No  govern- 


REPORT   OF  THE    SPEECH   OF   P.    PHILLIPS,    ESQ.  79 

ment,  under  the  law  of  nations,  is  justified  in  demanding  from 
another  what  it  is  not  ready  to  give  under  similar  circumstances.  If 
Portugal  had  yielded  to  oar  assertion  of  right,  and  a  similar 
demand  against  us  had  been  presented  by  another  nation,  no 
American  minister  could  have  been  found  so  wanting  in  self-respect, 
as  to  have  shielded  himself  behind  the  argument  now  set  up. 

Upon  these  principles  we  assert,  that  the  present  claimants  had 
a  demand  for  indemnification  against  Portugal.  This  demand 
having  been  released  through  the  action  of  this  government,  the 
question  now  is,  whether  this  has  been  effected  by  such  means  as  to 
make  it  liable  to  indemnify  them. 

In  looking  through  the  voluminous  documents  which  make  up  the 
history  of  this  case,  we  are  struck  with  the  repeated  misfortunes 
(I  use  the  mildest  word),  it  has  been  subjected  to.  From  Decem- 
ber, 1815,  to  May,  1835,  the  government  seemed  to  have  wholly 
abandoned  the  interest  of  the  claimants.  During  this  whole  period 
of  twenty  years  there  is  not  a  line  addressed  to  the  Portuguese 
government  ;  when  it  is  resumed  in  1835,  we  find  our  minister,  Mr. 
Kavanagh,  reporting  de  novo  to  our  Secretary  of  State,  the  facts 
of  the  case,  wholly  innocent  of  all  knowledge  of  past  negotiations, 
[30  Jan.,  1836  to  Mr.  Forsyth,  Doc.  14,  p.  28],  and  stating 
further,  that  there  was  no  record  in  the  archives  of  the  correspon- 
dence with  Mr.  Sumpter.  In  this  letter,  as  in  the  one  under  date 
26  December,  1836  [p.  31,]  Mr.  Kavanagh  also  writes,  that  he 
had  withheld  the  Armstrong  case,  to  "prevent  embarrassment  in  the 
settlement  of  the  others." 

When,  finally,  the  Armstrong  case  is  again  presented  to  the 
Portuguese  government,  it  is  upon  the  letter  of  our  consul  enclose- 
ing  copy  of  Captain  Reid's  protest,  and  the  prior  letter  of  the 
consul,  written  during  the  night  of  the  engagement.  These  are 
the  documents,  solemnly  paraded,  and  more,  solemnly  marked,  A,  B, 
C,  upon  which  the  controversy  was  resurrected  from  the  sleep  of 
death,  to  which  the  government  had  apparently  consigned  it. 


BRIG   GENEEAL   AKMSTKONG. 

[Kavanagh  to  Minister  Foreign  Affairs  of  Portugal,  It  February, 
1837.     Doc.  14,  p.  32.] 

As  may  have  been  anticipated,  the  first  reply  of  the  Portuguese 
government,  opens  with  the  declaration — "That  her  majesty's 
government  cannot  but  be  surprised,  that  this  claim  has  made  its 
appearance  after  a  silence  of  so  many  years."  [3  August,  1843. 
Doc.  14,  p.  18.]  How  feeble  was  the  attempt  to  explain  this 
apparent  abandonment,  will  be  seen  in  the  letter  of  Mr.  Hopkins 
to  Count  Tojal,  and  the  reply  thereto.  [Doc.  53,  p.  21,  34.} 

The  next  stage  in  this  diplomacy,  is  the  peremptory  demand  made 
by  Mr.  Clay,  under  the  instructions  of  Mr.  Clayton  [Doc.  53,  p. 
69],  in  which  he  limits  his  stay  at  the  Portuguese  court  to  20  days, 
without  a  satisfactory  adjustment  of  all  the  American  claims,  and 
here  again  we  find  the  unfortunate  claim  of  the  Armstrong  over- 
shadowed and  subordinated.  Count  Tojal,  in  his  reply  of  6  July, 
1850  [Doc.  53,  p.  13],  "yields  to  the  force  of  circumstances,  and 
without  again  reverting  to  the  justice  or  injustice  of  the  claims 
presented,  and  only  pro  bono  pads,  offers  to  pay  the  said  mentioned 
claims,  amounting  to  $91,727  according  to  Mr.  Clay's  account,  with 
the  only  exception  of  that  relating  to  the  privateer  (General 
Armstrong.  In  respect  to  this  claim,  the  undersigned  cannot 
deviate  from  the  proposal  heretofore  made  to  Mr.  Clay,  that  of  so 
important  a  claim  being  submitted  to  the  decision  of  a  third  power, 
the  claim  being  of  so  different  a  nature  from  the  others.  For  as 
these  latter  have  reference  only  to  Portugal,  that  of  the  privateer 
involves  a  principle  of  national  law,  the  application  of  which  does 
not  merely  regard  Portugal,  but  all  other  nations." 

It  is  in  this  letter  we  find  conclusive  proof  that  the  obstinacy  of 
Portugal  was  stimulated  and  directed  by  English  influence  :  "  Her 
majesty's  government,  besides  the  arguments  contained  in  the  notes 
formerly  addressed  to  the  government  of  the  United  States,  finds 
its  judgment  and  the  manner  of  weighing  the  question  strengthened 
with  the  opinion  of  her  Britannic  majesty's  government,  which  has 


EEPOKT   OF  THE   SPEECH   OF   P.    PHILLIPS,   ESQ.  81 

always  deemed  this  claim  of  the  government  of  t\e  United  States  as 
unjust.  The  subsisting  relations  between  her  most  faithful  majesty's 
government  and  that  of  her  Britannic  majesty,  OBLIGE  the  under? 
signed  to  communicate  to  the  British  government  all  that  has  taken 
place,"  &c.,  &c. 

Now,  this  question  of  "National  Law7'  was  the  liability  of  Por- 
tugal to  make  good  losses  occasioned  by  a  force  which  she  was 
physically  unable  to  resist.  It  was  in  relation  to  this  very  objection, 
and  after  it  had  been  solemnly  urged,  that  Mr.  Webster  declared, 
In  1842,  that  this  claim  would  "  not  be  relinquished."  Mr.  Clayton 
had  written,  on  8th  March,  1850  [Doc.  53,  p.  68],  that,  in  reference 
to  an  arbitration,  the  President  had  directed  him  to  say,  "  that  no 
such  course,  under  the  circumstances,  would  receive  his  sanction."  A 
sudden  change  having  taken  place  in  our  national  administration,  we 
find  Mr.  Webster  writing,  on  23d  August,  1850  [Doc.  53,  p.  83], 
that  the  President  "  deems  it  advisable  to  accept  the  proposition 
offered  in  the  note  addressed  to  you,  by  the  Count  de  Tojal,  on  the 
6th  July  last." 

What  was  that  proposition  ?  It  was  evidently  one  by  which,  to 
say  the  least  of  it,  our  claim  was  placed  at  hazard,  in  order  to  obtain 
the  payment  of  others.  The  proposition  was  a  complete  thing.  The 
United  States  could  only  accept  it  as  a  whole.  There  was  no 
admission  by  Portugal  of  the  justness  of  the  claims  she  agreed  to 
pay.  On  the  contrary,  she  denied  their  justness.  The  proposition 
was  "pro  bonopacis,"  and  this  consideration  would  not  be  secured 
by  the  acceptance  of  the  money  and  the  rejection  of  arbitration, 
for  the  greatest  disturber  of  her  peace.  Upon  this  point,  words 
might  be  multiplied,  but  not  argument.  The  statement  of  the 
proposition  vindicates  itself.  [2  Parsons  on  Contracts,  p.  29.] 

Our  claim  thus  placed  at  hazard  for  governmental  purposes,  and 
for  considerations  in  which  we  had  no  special  interest,  we  now  pro- 
ceed to  the  examination  of  the  treaty  by  which  the  agreement  to 
arbitrate  was  provided  for. 

I  do  not  think  it  necessary  to  dwell  upon  the  letters  of  Captain 

7 


82  BKIG   GENERAL   ARMSTRONG. 

Reid,  written  from  New  York,  the  26th  of  August,  or  that  of  S.  C. 
Reid,  Jun.,  of  5th  September,  inquiring  of  the  truth  of  rumors  that 
such  an  arbitration  was  contemplated.  Their  dates  show  that  they 
were  written  after  the  arbitration  had  become  a  fixed  fact,  and  so 
Mr.  Webster  replies  to  them.  Both  of  these  letters,  in  respectful 
terms,  question  the  propriety  of  the  act,  and  after  they  had  learned 
that  the  government  was  absolutely  committed,  nothing  was  left  to 
them  but  submission. 

The  treaty  having  been  perfected  by  the  Senate,  Mr.  Webster,  on 
the  20th  March,  1851,  writes  to  Mr.  Hadduck  [Doc.  53,  p.  85], 
directing  him  that,  in  carrying  into  effect  the  3d  article  of  the 
treaty,  he  will  compare  jointly  with  the  Portuguese  government 
the  "copies  therein  specified,"  and  further,  he  says:  "You  will 
understand,  of  course,  that  these  copies  are  limited  to  such  commu- 
nications as  have  passed  between  the  American  Legation  and  the 
Portuguese  government,  at  Lisbon,"  &c.,  &c. 

On  the  12th  July  [Doc.  53,  p.  86],  he  writes  to  him  again,  and 
referring  to  his  former  communication,  he  says  :  "  To  provide  against 
the  omission  of  any  important  part  of  the  earlier  portion  of  the  cor- 
respondence— I  mean  that  which  passed  in  1814  and  1815,  in  Rio 
Janeiro,  where  the  court  of  Portugal,  at  that  time,  resided,  and 
which  it  could  not  have  been  intended  to  exclude — I  transmit  yon 
herewith  a  printed  copy  of  the  correspondence,  as  communicated  to 
Congress,  on  ,15th  December,  1845." 

The  erroneous  limitation  in  the  former  letter  is  attempted  to  be 
remedied  by  the  latter.  But  before  this  second  letter  reached  its 
destination,  Mr.  Hadduck  had  already  met  the  Portuguese  minister, 
and  compared  and  certified  the  evidence  to  be  submitted  to  the 
arbitrator.  [See  Mr.  Hadduck's  letter,  17th  July,  1851.  Doc.  53, 
p.  87.]  It  may  be  that  the  award  is  to  be  attributed  to  an  imper- 
fect presentation  of  the  case,  and  thus  vindicate  the  remark  made 
by  Mr.  Bayard,  in  the  Senate,  that  he  "  finds  OB  the  face  of  the 
decision  the  want  of  a  proper  presentation  of  the  case,"  attributable 
to  "  a  gross  neglect  on  the  part  of  the  officer  of  the  government." 


REPORT  Otf  THE  SPEECH  OF  P.   PHILLIPS,   ESQ.  »8 

•  The  government  having  thus  submitted  this  case  to  arbitration 
without  the  assent  of  the  claimants,  construed  the  3d  article,  which 
provides,  "  that  copies  of  all  correspondence  which  has  passed,  in 
reference  to  the  claims,  &c.,  shall  be  laid  before  the  arbiter,"  &c., 
as  a  limitation  excluding  the  right  of  the  claimants  to  be  heard,  or 
in  any  manner  to  appear  in  the  case. 

Now,  we  do  not  admit  that  the  government  has  a  right,  under 
such  circumstances,  to  submit  the  claim  of  one  of  its  citizens  to  the 
arbitrament  of  a  third  power,  without  holding  itself  liable  to  make 
good  the  claim,  if  it  can  be  shown  to  be  founded  in  justice.  But 
waiving  this,  we  contend,  if  a  case  be  thus  submitted,  on  the  grdat 
principles  of  justice  which  govern  the  affairs  of  nations  and  men,  the 
parties  should  have  their  "day  in  court,"  to  submit  such  proofs  and 
irguments  as  they  may  deem  necessary  to  the  assertion  of  this  right.  '• 

Your  honors  will,  I  trust,  pardon  my  reading  an  extract  from 
Chancellor  Walworth,  in  reference  to  the  binding  efficacy  of  awards  : 
"I  apprehend  it  would  be  carrying  the  principle  too  far  to  say  that 
the  decision  shall  be  conclusive  on  the  party,  who  has  never  had  a 
chance  to  be  heard  before  the  arbitrator,  upon  the  subject  of 'the 
submission."  I  regard  it  "  as  a  fundamental  rule  of  construction, 
in  reference  to  every  transaction  in  th'e  nature  of  a  judicial  pro- 
ceeding, that  the  contract  of  submission  necessarily  implies  that  the 
arbitrator  is  not  authorized  or  empowered  to  decide  the  question  in  con- 
troversy without  giving  the  parties  an  opportunity  to  be  heard  in 
relation  thereto,  unless,  by  the  terms  of  submission,  the  right'  is 
waived."  And  the  Chancellor  quotes  Lord  Eldon,  in  a  case 
where  an  act  of  sederunt  was  relied  on,  as  saying,  "  that  by  the 
great  principles  of  eternal  justice,  which  was  prior  to  the  act  of 
sederunt,  it  was  impossible  that  an  award  could  stand  where  the 
arbitrator  heard  the  one  party,  and  refused  to  hear  the  other." 
[Elmendorf  vs.  Harris,  23  Wend.,  633.]  And  the  same  principle 
has  been  adjudicated  in  the  Supreme  Court  of  the  United  States,  to 
which  we  may  now  add  the  admission  in  the  learned  solicitor's  brief, 
that  "  it  is  not  necessary  to  specify  that  the  arbitrator  shall  hear  and 


84  BB3G  GENERAL   AKM3TKOHG. 

decide  upon  the  law,  and  the  facts  which  shall  be  submitted  by  the 
claimants,  through  their  government ;  that  is  implied  from  the  office 
of  arbitrator."  [Printed  brief,  p.  5.J. 

I  submit,  with  unfeigned  respect  for  that  great  statesman  and 
jurist,  who  decided  upon  the  construction  of  this  article  of  the 
treaty,  that  there  was  nothing  in  its  terms  which  took  from  the 
parties  the  right  they  claimed  under  it.  But  whether  this  construc- 
tion was  right  or  wrong,  our  claim  for  redress  is  unaffected,  as  in 
the  one  case,  the  injury  would  flow  from  an  executive  act,  and  in 
the  other,  from  the  treaty-making  power.  In  either  case,  the  parties 
would  have  been  damaged  by  an  act  of  their  government  against 
right  and  justice. 

We  come  now  to  the  question,  "  what  is  the  scope  and  object  of 
the  submission  ?" 

To  answer  this,  we  must  revert  to  the  inquiry,  what  was  claimed 
on  the  one  hand,  and  denied  on  the  other  ? 

1.  No  dispute  ever  arose  as  to  the  amount  of  the  claim. 

2.  The  right  to  indemnity  against  Portugal  was  nerer  alleged 
but  on  the  assumption  of  the  truth  of  Captain  Reid's  statement, 
that  he  acted  in  self-defence.     [Hopkins  to  Count  Tojal,  Doc.  53, 
p.  22.] 

3.  Portugal,  upon  the  admission  of  our  premises,  denied  that  any 
such  liability  existed  under  the  law  of  nations.    The  whole  discus- 
sion was  in  the  nature  of  a  demurrer  which,  admitting  the  facts  to 
be  true,  denied  the  conclusion  of  law.    See 

Doc.  53,  p.  33,  Kavanagh, .        .  .  18th  March,  1831 

34,        do.       .        .  '.    4th  Sept.,     1837 

36,        do.       .v  .    6th  April,    1837 

•*          76,  Count  Tojal,     ':  j  .    eth  July,      185C 

Looking  to  the  correspondeuce  for  the  purpose  of  isolating  the 
point  of  difficulty,  and  then  referring  to  the  language  of  the  2d 
article  of  treaty,  I  am  constrained  to  the  conclusion  that  the 
matter  referred  was  the  "  question  of  public  law  involved  in  tht 


REPORT   OF    THE   SPEECH   OF   P.    PHILLIPS,    ESQ.  85 

Armstrong  case"  upon  which  the  parties  had  not  been  able  "  to  come 
to  an  agreement?'  This  specific  question  was,  whether  the  weakness 
of  Portugal  released  her  from  liability  for  the  damage  sustained  by 
the  Armstrong,  or  the  illegal  proceedings  of  the  British  fleet  at 
Payal.  If  Portugal  had  at  any  time  rested  her  denial  of  responsi* 
bility  upon  the  ground  that  we  were  the  first  aggressors,  it  would 
have  at  once  tendered  an  issue  of  fact,  which  was  capable  of  easy 
solution.  If  this  construction  be  correct,  then,  npon  the  plainest 
principles  of  municipal  and  national  law,  the  award  not  being 
responsive  to,  but  exceeding  the  submission,  would  be  void. 
[Vattel's  Law  of  Nations,  p.  276,  277.  Wildman,  1  vol.,  p.  186. 
Steers  and  Dashel,  1  Bsp.  N.  P.  C.,  p.  167.] 

If,  however,  this  view  be  erroneous,  and  the  question  of  fact  was 
submitted  by  the  treaty,  then  our  complaint  is  stronger  of  the  gross 
wrong  and  injustice  in  submitting  this  case  for  adjudication  on  a 
question  of  facts,  and  depriving  the  parties  of  the  right  to  improve 
the  evidence  by  such  further  proof  as  in  their  opinion  their  case ' 
demanded.  It  will  be  remembered  that  this  transaction  to.ok  place 
"  in  the  face  of  all  Fayal,  and  a  respectable  number  of  strangers." 
It  was  capable  of  the  fullest  elucidation.  The  claimants  had 
presented  their  claim  on  their  own  statement  alone,  as  sufficient  for 
the  initiatory  action  of  their  own  government,  but  they  had  never 
prepared  it  for  final  adjudication  by  any  tribunal  whose  judgment 
was  to  conclude  them.  Could  there  be  a  greater  wrong  committed 
against  their  rights,  than  to  force  them,  in  this  state  of  unpreparedness, 
to  an  arbitration,  which,  by  its  terms,  excluded  them  from  all  right  to 
be  heard? 

If,  during  the  negotiations,  the  Portuguese  ministers  had  ever 
rested  their  denial  of  liability  upon  the  ground  that  the  proof  was 
not  sufficient  as  to  the  facts,  the  claimants  could  have  immediately 
made  good  the  deficiency,  or  at  any  rate  brought  forward  such 
evidence  as  was  within  their  power,  and  upon  which  they  were 
willing  to  rely.  This  contingency  was  not  omitted  in  the  instruc- 
tions of  Mr.  Webster,  who,  writing  on  the  15th  January,  1842,  to 


86  BRIG  GENERAL  ARMSTRONG. 

Mr.  Barrow,  says—"  If  the  inadmlssibility  of  the  claim  is  made  to 
depend  upon  the  defect  of  evidence,  or  upon  any  other  cause,  you  will 
ascertain  precisely  what  further  evidence  is  required,  in  addition  to 
that  which  has  already  been  communicated  by  Captain  Reid.'* 
[Doc.  14,  p.  40.] 

I  conclude  this  point  by  repeating — that  if  the  question  of 
national  law  was  alone  submitted,  then  the  award,  as  to  the  facts, 
is  not  of  any  validity.  If  the  facts  as  well  as  the  law  were 
submitted,  then  the  still  greater  wrong  has  been  done  to  the 
claimants,  by  excluding  them  from  the  right  to  prove  the  facts  and 
vindicate  the  claim. 

The  award  of  Louis  Napoleon  impliedly  admits  the  liability  of 
Portugal  under  the  law  of  nations.  His  language  is,  "That 
Captain  Reid,  not  having  applied  from  the  beginning  for  the  inter- 
vention of  the  neutral  sovereign,  &c.,  '  released  that  sovereign  of  the 
obligation  in  which  he  was  to  afford  him  protection,  by  any  other 
means  than  that  of  a  pacific  intervention.1 "  Again  he  says — "  that 
the  government  of  her  most  faithful  majesty  cannot  be  held  respon- 
sible, &c.,  'without  the  local  officers  and  lieutenants  having  been 
required  in  proper  time,  and  enabled  to  grant  aid  and  protection  to 
those  having  the  right  to  the  same.1 " 

Upon  the  facts  it  is  considered,  that  if  it  be  clear  that  "some 
English  long-boats,  under  the  command  of  Lieut.  Fausset  approached . 
the  American  brig,  it  is  not  certain  that  the  men  who  manned  the 
boats  aforesaid  were  provided  with  arms  and  ammunition" 

That  "  it  is  evident  in  fact,  &c.,  that  the  Americans  having  hailed 
them,  and  summoued  them  to  be  off  immediately,  fired  upon  them, 
&c.,  without  any  attempt  having  been  made  on,  the  part  of  the  crew 
of  the  boats  to  repel  at  once  force  by  force." 

It  will  thus  be  perceived,  that  having  decided  the  law  in  our 
favor,  our  claims  was  rejected.  «,.->a-»r»  o 

1st,  Because  it  was  uncertain  that  the  boats  were  armed.      3...,",^, 

2d,  That  we  did  not  apply  for  protection,  before  we  fired  upon 
the  boats,  „  .? 


REPOltT   OF   THE   SPEECH   OF   P.    PHILLIPS,   ESQ.  87 

-  The  controlling  fact,  which  must  necessarily  elucidate  the 
approach  to  the  brig,  whether  there  were  more  than  "  one  boat," 
is  not  found  against  the  claimants.  If  our  statement  be  correct; 
and  it  is  not  denied  by  the  award,  the  question  must  be  answered 
— why  did  four  long-boats  of  the  enemy  approach  the  brig? 
Again  the  fact  is  not  denied,  that  one  man  was  killed  and  one 
wounded  on  board  of  the  brig — but  the  award  states  that  it  was 
"  not  certain,  that  the  men  who  manned  the  boats  were  provided 
with  arms  and  ammunition."  How,  then,  did  the  loss  and  .injury 
take  place  ?  The  only  certainty  found  by  the  award  is  that  the 
boats  "  did  not  repel  at  once  force  by  force  " — without  knowing 
how  to  measure  time  as  applicable  to  this  phrase  ;  it  is  evident  that 
if  they  did  return  the  fire,  it  was  as  soon  as  they  were  ready  ; 
and  whether  this  was  one  minute  or  nine  after  they  received  it, 
could  make  no  difference  in  this  transaction. 

Looking  through  the  whole  case,  I  believe  your  honors  will  agree 
with  me  in  saying,  that  a  just  claim  on  the  part  of  the  plaintiffs  has 
been  lost  to  them,  and  that  the  loss  has  been  occasioned  by  the 
action  of  their  own  government,  and  there  now  remains  only  the 
question,  whether  this  government  is  bound  to  make  good  the  loss 
which  it  has  occasioned  ? 

In  the  formation  of  a  government,  individuals  yield  up  the  right 
to  redress  their  own  wrongs.  This  is  submitted  to  the  power  which 
represents  the  whole  society.  For  the  redress  of  private  injuries, 
municipal  laws  are  ordained ;  for  wrongs  committed  by  a  foreign 
government,  the  injured  party  looks  to  the  power  of  his  own 
sovereign,  and  to  the  law  of  nations.  Each  citizen  owes  allegiance 
to  the  society,  and  in  return  receives  from  that  society  its  protec- 
tion. In  the  language  of  a  learned  writer — "  In  the  act  of 
association,  by  virtue  of  which,  a  multitude  of  men  form  toge- 
ther a  state  or  nation,  each  individual  has  entered  into  negoti- 
ations with  all,  to  promote  the  general  welfare  ;  and  all  have  entered 

x 

into  engagements  with  each  individual  to  facilitate  for   him  the 
means  of  supplying  his  necessities,  and  to  protect  and  defend  him." 


88  BRIG    GENERAL    ARMSTRONG. 

[Vattel,  §  16,  p.  4.]  Again,  "  whoever  uses  a  citizen  ill,  indirectly 
offends  the  State  which  is  bound  to  protect  the  citizen  ;  and  the 
sovereign  of  the  latter  should  avenge  his  wrongs,  punish  the 
aggressor,  and,  if 'possible,  oblige  him  to  make  full  reparation,  since 
otherwise,  the  citizen  would  not  obtain  the  great  end  of  civil 
association,  which  is  safety."  [§  71,  p.  116.] 

If  the  government,  for  any  considerations  of  the  general  welfare, 
sacrifices  the  rights  of  an  individual,  the  loss  should  be  made  good 
by  the  means  of  the  whole,  and  thus  equalize  the  contribution  and 
burden.  This  is  a  principle  of  universal  justice,  applicable  alike  to 
the  affairs  of  government  and  individuals.  Thus,  by  the  Rhodian 
Law,  it  is  declared  that,  "  if  goods  are  thrown  overboard,  in  order 
to  lighten  the  ship,  the  loss  incurred,  for  the  sake  of  all,  shall  be 
made  good  by  the  contribution  of  all."  Speaking  of  the  right  of 
"  eminent  domain,"  the  same  learned  writer  on  the  law  of  nations 
says,  that  when,  in  a  case  of  necessity,  the  sovereign  disposes  of  the 
rights  of  an  individual,  "justice  requires  that  the  individual  be 
indemnified  at  the  public  charge  ;  and  if  the  treasury  is  not  able  to 
bear  the  expense,  all  the  citizens  are  bound  to  contribute  to  it  ;  for 
the  burdens  of  the  State  ought  to  be  supported  equally,  or  in  a  just 
proportion."  [Sec.  244,  p.  112.]  This  great  principle  of  equality 
and  justice  has  been  incorporated  into  the  stipulations  of  our  Federal 
and  State  constitutions,  forbidding  the  government  from  taking 
private  property  for  public,  and  without  just  compensation. 

Upon  these  fundamental  rules,  which  regulate  the  relation  between 
government  and  citizen,  the  obligation  to  make  good  our  loss  in  this 
transaction  rests.  We  need  not  rely,  however,  upon  the  assertion 
of  general  principles,  by  elementary  writers,  for  the  doctrine  has 
been  embalmed  in  judicial  decisions.  In  the  case  of  De  Bode  vs. 
Regina,  the  Lord  Chancellor  asserted,  that  "  it  is  admitted  laic  that, 
if  the  subject  of  a  country  is  spoliated  by  a  foreign  government,  he 
is  entitled  to  obtain  redress  from  the  foreign  government,  through 
the  means  of  his  own  government.  But  if,  from  weakness,  timidity, 
or  any  other  cause,  on  the  part  of  his  own  government,  no  redress 


BEPORT   OF  THE   SPEECH  OF   P.    PHILLIPS,   ESQ.  89 

is  obtained  from  the  foreigner,  then  he  has  a  claim  against  his  own 
country."  [House  of  Lords,  1852.  Eng.  Law  and  Eq.,  vol.  xvi., 
p.  23.]  It  will  be  perceived  that  this  general  liability  is  limited  by 
the  word  "  spoliated."  To  spoliate,  is  to  rob,  plunder.  So  that  the 
redress  would  not  apply  to  injuries  received  in  legitimate  warfare. 
It  was  upon  this  principle  that  it  was  insisted  in  the  British  Par- 
liament that  if  British  subjects,  whose  debts  and  property  had  been 
confiscated  by  the  States,  during  the  Revolution,  did  not  receive 
indemnity  under  the  treaty  of  1783,  "Great  Britain  was  bound 
in  honor  to  make  them  full  compensation  for  their  losses."  [Debrett's 
Debates,  quoted  in  vol.  iii.  Jefferson's  Works,  p.  373.] 

This  principle,  announced  by  the  highest  court  in  England  as  a 
maxim  of  law,  has  a  wider  reach  than  is  necessary  to  be  maintained 
in  the  adjudication  of  the  claim  now  before  the  court,  but  no  reflec- 
tion of  my  own,  and  no  argument  or  authority  adduced,  leads  me 
to  doubt  its  entire  correctness. 

By  an  examination  of  our  numerous  treaties,  I  find  the  distinction 
between  acts  of  war  and  spoliations  fully  recognized,  as  they  are 
also  in  the  admiralty  decisions — "  spoliatio  sed  legalis  captio."  By 
the  7th  article,  treaty  with  Great  Britain,  1794,  she  stipulated  to 
pay  for  losses  and  damages  by  reason  of  irregular  or  illegal  captures 
made  during  the  war.  [Volume  of  Treaties,  p.  121.]  So,  in  the 
treaty  with  Spain,  1802,  she  stipulated  to  "  make  compensation  for 
the  damages,  losses,  and  injuries,  in  consequence  of  the  excesses 
committed  by  Spanish  subjects  on  American  citizens  during  the  war." 
[p.  198.]  These  may  suffice,  though  we  might,  to  the  same  point, 
quote  the  treaties  with  France,  Denmark,  the  Two  Sicilies,  Texas, 
Mexico,  and  Peru. 

I  have  examined  all  our  treaties  with  foreign  nations,  a  list  of 
which,  with  reference  to  such  articles  as  bear  upon  the  question 
before  you,  I  now  submit  for  the  convenience  of  the  court.  I  have 
found  in  that  examination  no  parallel  to  the  treaty  now  before  you. 
This  is  the  first  instance  that  our  government  has  submitted  the  case 
of  an  individual  to  the  arbitrament  of  a  foreign  power.  So  far  as 


90  BRIG   GENERAL   ARMSTRONG. 

I  am  informed,  it  is  the  first  case  iu  the  history  of  nations.  Under 
the  Treaty  of  Peace  and  Amity,  in  1814,  we  agreed  with  Great 
Britain  to  refer  the  dispute,  as  to  the  Boundary  established  by  the 
treaty  of  1783,  to  two  commissioners  ;  and,  in  the  event  of  their 
disagreement,  to  refer  it  to  "  some  friendly  foreign  state."  [p.  220.] 
The  commissioners  thus  appointed  having  disagreed,  the  terms  of, 
submission  were  fixed  by  a  convention,  29th  Sept.,  1821.  [p.  362.] 
Again,  a  difference  having  arisen,  under  the  1st  article  of  the  Treaty 
of  Ghent,  as  to  reclamations  for  slaves  carried  away  by  the  British, 
it  was,  by  the  convention  of  1818  [p.  248],  agreed  to  refer  the  ques- 
tion to  "  some  friendly  sovereign  or  state.  Both  of  these  arbitra- 
tions involved  mere  questions  of  law,  as  to  the  true  construction  of 
written  instruments.  I  will  ask  of  your  honors  an  examination  of 
these  cases,  that  you  may  see  with  what  particularity  the  right  of 
the  parties  to  a  full  and  fr.ee  investigation  was  secured.  In  the 
latter  case,  after  the  question  of  law  was  decided,  the  claimants,  as 
in  all  other  treaties  providing  for  indemnity,  were  allowed  to  go 
before  commissioners,  and  produce  the  evidence  upon  which  they 
asserted  their  right.  I  do  not  understand  that  government  is  alone 
the  embodiment  of  the  power  of  the  nation,  but  that  it  is  also  the 
representative  of  its  justice.  To  require,  through  legislative  enact- 
ments, that  justice  be  done,  and  refuse  to  do  justice  itself ;  to  teach 
one  thing  by  its  precept  and  another  by  its  example,  would  be  to 
confound  all  morality,  and  deprive  law  of  all  sanction  but  force. 

We  appeal,  then,  from  the  power  of  the  government,  by  which 
we  have  been  injured,  to  its  justice,  for  redress.  No  question  of 
indemnity  or  personal  safety  could  have  swayed  the  determination  of 
the  gallant  Reid  and  his  companions  in  arms.  Without  a  thought,  but 
for  the  interest  and  honor  of  their  country,  they  freely  perilled  both, 
and,  with  victorious  swords,  carved  out  the  noblest  monument  of 
our  naval  history.  For  our  defence  on  land  we  look,  in  time  of  war, 
to  our  citizen  soldiery.  For  our  safety  on  the  ocean,  to  our  volunteer 
seamen  The  Armstrong  and  Fayal  are  the  watchwords  for  our 
future.  They  are  the  lights  which  will  lead  our  gallant  tars  to 


REPORT   OF  THE  SPEECH   OF   P.    PHILLIPS,  ESQ.  91 

victory .    Let  them  not  be  dimmed  by  a  denial  of  that  governmental 
protection  to  which  they  are  justly  entitled. 

It  may  be,  may  please  your  honors,  that  in  the  zeal  of  advocacy 
I  may  have  used  expressions  and  exhibited  a  feeling  not  usual  in 
judicial  proceedings.  If  such  has  been  the  case,  I  trust  your  honors 
will  pardon  it  for  the  cause  itself ;  for  surely,  if  there  ever  was  a 
case  in  which  the  cold  atmosphere  of  the  court  should  be  warmed 
with  the  glow  of  patriotism,  it  is  the  one  which,  on  behalf  of  the 
claimants,  I  now  submit  for  your  consideration. 


0,1 


f»rri"-  :  -|H  I  :  uiTTf 

.noi's'ijltf  is 

I  nj)  v! 


VO 


92  BRIG   GENERAL   ABMSTBONG. 


BRIEF  OF  THE  U.  S.  SOLICITOR. 

THE  petition  asks  payment  by  the  United  States  for  the  destruc- 
tion of  the  brig  "  General  Armstrong "  by  a  British  fleet  on  the 
27th  September,  1814,  at  the  port  of  Fayal,  in  the  neutral  terri- 
tory of  Portugal.  Indemnity  was  demanded  by  Portugal  of  Eng- 
land at  the  time.  Portugal  having  failed  to  procure  it  from  Eng- 
land, demand  was  made  on  Portugal  in  1835.  Portugal  refusing  to 
pay,  although  earnestly  pressed  by  the  United  States,  it  was  finally 
agreed,  by  treaty  concluded  24th  February,  and  ratified  10th 
March,  1851,  to  submit  the  claim  to  arbitration.  The  King  of 
Sweden  was  suggested  by  Portugal  as  the  arbitrator,  but  the 
United  States  preferring  the  President  of  France,  he  was  agreed 
upon  as  the  arbitrator.  On  the  3d  of  November,  1852,  he  rendered 
an  award  in  favor  of  Portugal,  which  the  United  States  acknow- 
ledged as  final  and  obligatory. 

The  claim  is  now  urged  against  the  United  States,  on  the  ground 
— 1st.  That  the  claim  was  improperly  submitted  to  arbitration. 
2d.  That  the  treaty  was  so  improperly  and  unskillfully  framed,  and 
the  arbitration  so  negligently  and  improperly  managed  by  the  Secre- 
tary of  State,  that  the  claim  was  thereby  lost  before  the  arbitrator. 

In  support  of  this  claim,  the  petitioners,  by  their  counsel,  have 
filed  a  brief,  the  points  of  which,  to  the  number  of  thirteen,  I  pro- 
ceed to  state  and  consider. 

First  point— Charges  that  the  Portuguese  government  acknow- 
ledged its  liability  to  the  United  States,  and  cites  the  letter  of  the 
Marquis  d'  Aguiar,  dated  December  23,  1814,  and  enclosures,  in 


BRIEF  OF  THE  U.  8.  BOLIOTTOE.  93 

support  of  this  allegation.  (See  p.  22,  Senate  Doc.  No.  14,  1st 
Sess.  29th  Cong.) 

It  is  true  that  the  enclosed  letter  to  Lord  Strangford,  the  British 
minister,  charges  the  British  squadron  with  violating  the  neutrality 
of  Portugal  in  destroying  the  "  General  Armstrong,"  and  demands 
an  apology  and  indemnity  both  for  the  inhabitants  of  Fayal,  and 
for  the  captain,  crew,  and  owners  of  the  "  Armstrong,"  but  it  does 
not  admit  the  liability  of  Portugal  in  any  event. 

Second.  Every  administration  has  admitted  the  right  of  the 
claimant.  The  evidence  relied  on  to  prove  this  is  supposed  to  be 
contained  in  the  letters  of  instruction  of  Mr.  Monroe,  January  3, 
1815,  p.  20  ;  of  Mr.  Dickens,  dated  May  20,  1835,  p.  23  ;  Mr. 
Forsyth,  October  2,  1835,  p.  21  j  Do.  July  2,  1836,  p.  29  ;  Do. 
September  21,  1836,  p.  31  ;  Mr.  Webster,  January  15,  1842, 
p.  40  ;  Do.  August,  1842,  p.  42.  Mr.  TTpshur,  who  succeeded  Mr. 
Webster,  and  Mr.  Calhoun,  who  succeeded  him,  declined  action  on 
the  claim.  Now,  with  respect  to  these  letters,  it  will  be  found  that, 
with  the  exception  of  Mr.  Webster,  none  of  the  secretaries  express 
an  opinion  on  the  justice  of  the  claim  against  Portugal — none  of 
them  indicate  any  examination  of  the  claim  ;  and  Mr.  Webster,  at 
page  4,  merely  says,  he  believes  "its  justness  has  not  been  denied," 
and,  at  page  42,  that  the  claim  is  "  regarded  as  just  by  the  govern- 
ment, and  will  not  be  relinquished  under  the  objections  heretofore 
made." 

The  first  letter  which  instructs  our  minister  to  demand  the 
indemnity  from  Portugal  is  that  of  Mr.  Dickens  in  1835.  Mr. 
Monroe  looked  to  Portugal  to  procure  it  from  Great  Britain  ;  and 
the  only  expression  in  any  letter  prior  to  1835,  from  our  officers, 
which  seems  to  look  to  Portugal,  is  to  be  found  in  Mr.  Sumter's 
letter  of  1st  January,  1815,  written  without  instructions  from  the 
State  Department ;  and  this  expression  is  not  used  as  a  demand, 
but  occurs  in  commenting  on  the  lettter  of  the  Marquis  d'  Aguiar, 
where  he  expresses  his  satisfaction  at  the  "  indication  "  it  affords  "  of 
a  resolution  to  make  or  procure  satisfaction  to  the  injured  Americans." 


1  BRIG   GENERAL  ABl48TEOmj. 

And  it  is  to  be  observed,  in  reference  to  this  allegation,  both 
with  respect  to  the  United  States  and  with  respect  to  Portugal, 
that  it  is  by  no  means  proper  to  attempt  to  conclude  them  by  what 
has  been  said  by  their  respective  officers  on  the  representations  of 
the  claimants,  when  acting  on  behalf  of  the  claimant  in  endeavor- 
ing to  procure  indemnity  for  them  from  others. 

Thus,  with  respect,  first,  to  the  Portuguese  officials  :  The  repre- 
sentations made  by  the  Marquis  d'Aguiar  in  his  letter  to  Lord 
Strangford,  in  which  he  claims  indemnity  for  the  Americans  on  the 
ground  that  the  British  violated  the  neutrality  of  Portugal  to 
destroy  the  American  brig,  and  asserting,  in  strong  terms,  that  the 
ground  on  which  Captain  Lloyd  had  justified  himself  at  the  time 
was  a  false  pretence,  were  afterwards,  when  the  claim  was  made 
against  Portugal,  set  up  to  estop  Portugal  from  denying  that 
the  British  had  been  the  aggressors  ;  and  now,  when  the  effort  is 
made  to  charge  the  Government  of  the  United  States,  the  repre- 
sentations made  by  the  Secretary  of  State  and  other  official  persons, 
in  the  effort  to  procure  indemnity  from  Portugal,  are  set  up  as 
admissions  of  the  rights  of  the  claimants  ;  and  upon  such  grounds 
alone,  the  advocates  of  the  claim  have  felt  themselves  warranted  in 
saying,  that  the  award  made  by  the  French  emperor  was  made  in 
total  disregard  of  the  facts.  But  when  it  is  remembered  that,  at 
the  several  times  when  these  representations  were  made  by  Portu- 
gal and  by  the  United  States,  they  were  acting  for  the  claimant  and 
on  his  representations,  and  did  not  undertake  to  hear  testimony 
and  decide  the  points  in  advance  of  undertaking  to  urge  the  claim, 
they  are  not  concluded  by  them  at  all  when  the  claimant  seeks  in 
turn  to  make  these  governments  responsible  for  his  losses. 

So  far  from  being  conclusive  evidence,  these  statements,  being 
nothing  in  fact  but  the  representations  of  the  claimant  himself, 
are  not  evidence  at  all.  But  these  statements,  not  written  by  any 
one  having  any  knowledge  of  the  facts,  and  altogether  on  the  sug- 
gestions of  the  claimants  and  for  their  benefit,  are  not  only  sought 
to  be  made  evidence,  but  evidence  so  irresistibly  conclusive  as  to 


BRIEF  OF  THE  TT;  B.  SOLICITOR.  :05 

authorize  the  inference  that  the  umpire  who  heard  all  the  testimony 
committed  a  gross  mistake  in  respect  to  the  facts. 

This  conclusion  is  far  from  being  justified  by  this  or  any  other 
testimony  which  the  claimant  has  offered.  Even  on  the  case  which 
the  claimant  has  chosen  to  present,  it  is  manifest  that  the  decision 
of  the  French  Emperor  was  in  accordance  with  the  facts  and  the 
law.  In  the  protest  which  Captain  Reid  made  on  the  27th  Sep- 
tember, 1814,  at  Fayal,  he  admits  that  he  fired  on  the  boats  of 
the  British,  on  the  suspicion  that  they  were  approaching  his  vessel 
for  a  hostile  purpose — a  suspicion  he  had  no  right  to  indulge,  and 
which  did  not  authorize  the  commencement  of  hostilities  in  a  nea- 
tral  port.  (See  the  case  of  the  Anne,  3  Wheat.  435.)  When  It 
is  considered,  too,  that  the  British  commander  declared  at  the  tinie 
that  the  attack  of  the  Armstrong  was  made  "  without  the  slightest 
provocation,"  and  "  that  the  neutrality  of  the  port  which  he  had 
intended  to  respect  had  been  thereby  violated,"  there  is  no  doubt 
that  the  Armstrong  was  the  aggressor.  It  became  so,  perhaps, 
under  the  honest  conviction  of  the  captain,  that  the  approach  of 
the  boats  from  the  English  squadron  was  made  with  a  hostile  pur- 
pose. But  that  circumstance  alone  was  insufficient  to  justify  him 
in  proceeding  to  violence.  The  English  squadron  had  the  same 
rights  in  the  harbor  which  he  had,  and  might  send  their  boats 
ashore  at  night  without  being  subject  to  questions  from  him. 

And  when  we  have  not  only  the  statement  of  Captain  Lloyd, 
that  the  boats  did  not  approach  the  brig  with  a  hostile  purpose, 
and  the  depositions  of  the  officer  in  command,  and  others  in  the  boat, 
testifying  positively  that  they  approached  without  any  hostile  pur- 
pose, can  we  hesitate  in  believing  that  such  was  the  fact,  when  not  a 
single  circumstance  is  related  by  the  officers  and  crew  of  the  brig 
which  conflicts  with  this  statement  ?  It  is  no  doubt  true  that  Cap- 
tain Reid  thought  otherwise  ;  but  his  opinion  cannot  weigh  against 
testimony  not  only  positive  on  the  point,  but  entirely  unimpeached. 

Third.  Says  prosecution  of  the  claim  renewed  by  Mr.  Clay- 
ton, and  peremptory  demand  made. 


96  BRIG   GENERAL   ARMSTRONG. 

Fourth.  That  when  this  was  done,  Portugal  offered  to  pay  all 
other  claims  as  a  lonu*,  if  the  United  States  would  consent  to  arbi- 
trate this.  This  statement  is  repeated  in  the  sixth  point,  and  will 
be  noticed  under  that  head. 

Fifth.  That  pending  this  negotiation  Portugal  made  further 
admissions.  That  England  interfered,  and  furnished  arguments. 

The  admissions  are  similar  to  those  already  considered.  The  inter- 
ference of  England  was  not  improper.  England  was  undoubtedly 
interested  in  the  question.  If  decided  against  Portugal,  and  war 
was  made  to  enforce  it,  she  would  be  regarded  as  the  cause  of 
bringing  on  Portugal,  a  weak  power,  the  Tengeance  of  a  strong 
one.  She  maintained  that  she  had  not  done' anything  which  justi- 
fied this.  The  commandant  of  her  fleet  against  whom  the  charge 
was  brought  repelled  it.  Could  she  stand  by  indifferently,  and  see 
Portugal  visited  with  war  under  such  circumstances  ?  On  the 
other  hand,  could  she  see  Portugal  forced  to  pay,  on  the  assump- 
tion that  England  was  the  aggressor,  without  being  sensible  that 
the  world,  under  such  circumstances,  would  expect  her  to  reimburse 
Portugal,  and  that  she  would  be  in  honor  bound  to  do  so.  It  is  no 
discredit  to  England,  therefore,  that  she  has  openly  manifested  an 
interest  in  the  settlement  of  this  question  ;  nor  does  it  show  a  want 
of  amicable  feeling  towards  the  United  States,  that  she  desired  our 
Secretary  of  State  to  refer  it  to  an  arbitrator  for  settlement. 

Sixth.  On  the  death  of  President  Taylor  and  the  accession  of 
Mr.  Fillmore  as  President,  with  Mr.  Webster,  the  proposition  to 
arbitrate  was  renewed  and  accepted,  &c.  That  the  payment  of  the 
other  claims  formed  any  part  of  the  inducement  or  consideration  for 
the  agreement  to  submit  the  Armstrong  claim  to  arbitration,  is  an 
allegation  entirely  unsupported  by  the  treaty,  or  anything  in  the 
correspondence  or  circumstances  which  led  to  it. 

Seventh.  That  the  private  agreement  to  arbitrate  this  claim  was 
entered  into  without  the  consent  of  the  claimants,  and  against  their 
protest,  &c. 

It  is  true  that  Mr.  Webster  did  not  consult  with  the  claimants 


BKIEF   OF   THE   U.  8.  SOLICITOR.  97 

as  to  what  course  he  should  take.  He  found,  on  entering  office, 
that  his  predecessor  had  proceeded  almost  to  extremities  with  Por- 
tugal in  order  to  extort  payment  of  this  claim.  Our  minister  had 
withdrawn  from  Lisbon,  and  notice  given  to  Portugal  that  the  cor- 
respondence would  be  laid  before  Congress,  with  the  opinion  of  the 
President  that  the  claim  was  withheld  upon  dishonest  pretexts,  and 
ask  the  action  of  Congress  on  the  case,  which  was  equivalent  to 
asking  the  power  of  compelling  payment.  He  (Mr.  W.)  did  not 
approve  the  action  of  his  predecessor.  He  concurred  with  Mr. 
Upshur  and  Mr.  Calhoun  (see  his  letter,  p.  54),  that  there  was 
nothing  in  the  circumstances  of  the  case  to  justify  such  a  course. 
What  course  should  Mr.  Webster  have  taken  with  these  convictions  ? 
He  could  not  properly  proceed  in  Mr.  Clayton's  course.  He  could 
not  suffer  the  existing  relations  to  continue.  He  must  keep  in  view 
the  dignity  of  his  Government  as  well  as  the  rights  of  the  citizen. 
He  could  not,  as  it  is  now  insisted,  abandon  the  pretensions  set  up 
by  his  predecessors,  and  waive  all  future  discussions  of  the 
subject  which  had  brought  about  a  suspension  of  diplomatic  rela- 
tions to  some  future  time,  and  so  renewed  the  diplomatic  rela- 
tions. Such  a  procedure  would  not  have  been  consistent  with  the 
dignity  of  the  Government.  It  would  have  been  also  as  full  a 
recognition  of  the  control  of  the  Government-agency  by  the  private 
citizen,  if  Mr.  Webster  had  desisted  from  doing  what  was  proper 
to  be  done  in  his  judgment,  as  if  he  had  proceeded  in  the  designs 
of  his  predecessor  against  his  own  judgment.  When,  therefore, 
the  petitioner  and  his  advocates  disclaim  all  right  on  the  part  of 
claimants  against  foreign  governments  who  have  committed  their 
claims  to  this  Government  for  prosecution,  to  dictate  the  measures 
to  be  taken,  but  yet  insist  upon  the  right  of  controlling  it  so  far  as 
to  be  able  to  require  the  Government  to  drop  the  claim  rather  than 
prosecute  it  in  a  way  which  does  not  meet  the  approbation  of  the 
claimant,  it  will  be  found,  upon  analyzing  this  proposition,  that  it 
is  in  fact  the  assertion,  in  another  form,  of  the  power  which  is  dis- 
claimed. 

8 


98  BRIG   GENERAL   ARMSTRONG. 

He  did  not,  therefore,  consult  with  the  claimants,  when  he  entered 
office,  as  to  the  course  he  thought  proper  to  take  to  re-establish  our 
amicable  relations  with  a  foreign  government ;  and  the  Senate  of 
the  United  States  approved  his  course  by  ratifying  the  treaty.  It 
was  peculiarly  proper  to  submit  the  claim  to  arbitration.  Portugal 
had  not  wronged  us.  This  question  was  one  of  naked  legal  liability, 
with  no  circumstance  for  complaint  against  her.  Should  the 
United  States  have  refused  to  submit  such  a  question  to  a  disinte- 
rested power,  and  used  her  superior  force  ?  But  though  it  is,  per- 
haps, immaterial,  the  objection  that  he  not  only  agreed  to  submit 
this  claim  to  arbitration  without  the  consent  of  the  claimants,  but 
against  their  protest,  is  not  sustained  by  the  proof.  The  proof  (see 
Gov.  Marcy's  letter),  shows,  on  the  contrary,  an  acquiescence  in  this 
course  ;  and  a  circumstance  which  is  conclusive  of  this  is  dwelt  on 
as  the  principal  burden  of  complaint  in  the  conduct  of  this  business 
subsequently — that  is,  the  offer  of  a  written  argument,  to  be  sub- 
mitted to  the  arbitrator. 

Eighth. — That  this  treaty  was  submitted  and  ratified  10th  March, 
without  any  possible  knowledge  of  the  circumstances,  in  proof 
of  which  Mr.  Webster's  letter  of  19th  March,  1851,  to  Mr.  Hadduck, 
is  cited,  and  Senate  Doc.  7,  1st  sess.  33d  Congress.  Captain  Reid 
had  notice  of  the  proposed  treaty  in  September,  1850.  He  had, 
therefore,  all  the  time  and  opportunity  necessary  to  make  known 
his  wishes. 

The  objections  to  the  form  of  the  treaty  are  frivolous  : 

1.  The  2d  article  recites,  as  a  reason  for  submitting  the  claim  to  ar- 
bitration, that  the  parties  could  not  agree  on  a  question  of  public  law 
involved  in  it ;  the  daim  was  to  be  submitted,  not  the  question  of  law. 

2.  The  objection,  that  the  claim  of  the  owners  was  not  presented, 
is  not  well  taken  ;  because,  the  treaty  refers  the  claim  to  arbitra- 
tion as  presented  by  the  American  Government,  which  included  a 
claim  for  the  vessel ;  and  the  award  was  pronounced  upon  a  claim 
relative  to  the  American  privateer  "  General  Armstrong." 

3.  It  is  not  necessary  to  specify  that  the  arbitrator  shall  hear 


BRIEF   OF  THB   U.  8.  SOLICITOR  99 

and  decide  upon  the  law  and  the  facts  which  shall  be  submitted  by 
the  claimants  through  their  government — that  is  implied  from  the 
office  of  arbitrator. 

Ninth. — That  the  Government  refused  to  forward  the  written 
argument  of  the  agent  of  claimants,  because  there  was  no  provision 
in  the  treaty  for  other  argument  than  that  contained  in  the  corre- 
spondence. This  refusal  of  the  Secretary,  and  the  absence  of  a  pro- 
vision for  argument  by  the  treaty,  seems  to  have  been  the  chief 
ground  relied  on  by  the  advocates  of  the  claim  in  the  Senate  against 
the  United  States.  This  objection  proceeds  on  the  ground  that  the 
party  was  denied  a  hearing,  and  it  was  asserted  that  it  could  only  have 
been  in  consequence  of  this  defect  in  the  treaty,  or  of  the  errone- 
ous construction  of  it,  by  which  a  hearing  was  denied  the  claimants, 
that  the  claim  was  lost,  as  the  decision  was  so  palpably  against  the 
weigh  £  of  evidence.  The  misapprehension  of  the  evidence  I  have 
already  considered.  If  the  court  will  compare  the  arguments  in 
behalf  of  the  claim,  by  Messrs.  Hopkins,  Clay,  and  other  official 
personages,  which  were  laid  before  the  President  of  the  French,  with 
that  presented  by  Mr.  Reid  to  Mr.  Webster,  it  will  be  perceived 
that  nothing  was  lost  in  point  of  argument  or  good  taste  by  sup- 
pressing Mr.  Reid's  production. 

Whilst  Mr.  Webster's  competence  for  his  position  is  not  question- 
ed, it  is  insisted  that  by  entering  into  an  arrangement  by  which  the 
facts  and  arguments  developed  in  this  voluminous  correspondence 
were  submitted  to  the  arbitrator  without  further  argument,  he  com- 
mitted an  error  so  gross  as  to  entitle  the  citizen  to  have  recourse  to 
Government  when  the  adverse  decision  was  made,  because  it  is  in- 
sisted that  if  Mr.  Reid's  argument  had  been  read  by  the  French 
President,  he  would  certainly  have  decided  otherwise. 

Mr.  Bayard,  at  page  28  of  the  speeches  in  the  Senate  printed  by 
the  claimant,  says  :  "  In  the  diplomatic  correspondence  in  reference 
to  the  transaction,  can  the  honorable  Senator  point  out  to  me  any 
time  token  the  Portuguese  government  took  the  ground  that  in  point  of 
/act  the  first  aggression  was  committed  by  the  General  Armstrong  ?" 


100  BB1Q   GENERAL  AKMSTKONG, 

Xo,  sir — no.  The  attention  of  our  own  representatives  was  neve? 
called  to  such  a  thing.  No  such  question  of  fact  was  ever  made  ;  no 
such  investigation  of  the  testimony  was  necessary,  because  the  govern- 
ment of  Portugal  never  intended  to  assume  such  a  ground;  but  the 
Emperor  of  France,  on  an  unargued  case,  gets  rid  of  the  subject  by 
assuming  a  matter  of  fact  which  the  whole  testimony  goes  to  deny." 
(See  same  remarks,  p.  412,  Congressional  Globe,  January  26, 1855.) 
It  is  surprising  that  the  honorable  Senator  to  whom  Mr.  Bayard 
referred  did  not  point  out  to  him  that  the  Portuguese  government 
had  not  only  insisted  that  the  "  General  Armstrong  "  was  the  aggres- 
sor, but  had  maintained  that  position  in  every  reply  given  to  our 
demand  upon  her  to  indemnify  the  claimants,  begining  with  De  Cas- 
tro's answer  in  1843,  which  is  the  first  response  made  to  the  demand 
on  Portugal.  (See  the  letter,  p.  15,  Doc.  53.  See  also  Count 
Tojal  to  Mr.  Hopkins,  p.  33,  September  29,  1849.  Same  to  isff.  Clay, 
p.  49,  March  9,  1850.  Same,  to  same,  p.  56,  April  1850.  Same  to 
same,  p.  61,  May  15,  1850.  Same  to  same,  p.  75,  July  6,  1850. 
Mr.  Figaniere  to  Mr.  Clayton,  27th  April,  1850,  p.  93.  Same  to 
game,  July  9,  1850,  p.  107.)  The  replies  of  Mr.  Hopkins  and  Mr. 
Clay,  to  be  found  in  this  document,  to  the  letters  addressed  to  them, 
also  show  that  this  position  was  taken  by  Portugal,  and  the  argu- 
ment turns  on  that  point  in  a  great  measure.  It  is  therefore  a  great 
mistake  to  suppose,  that  the  French  President  decided  the  case  on 
a  new  and  nnargued  point,  started  after  the  correspondence  was 
closed.  It  will  be  found  also  that  Mr.  Reid's  argument,  which  Mr. 
Webster  refused  to  send  to  France,  adds  nothing  to  those  embraced 
in  the  protocol  submitted  to  the  Emperor,  which,  it  appears  by  let- 
ter to  Mr.  Hadduck,  included  all  the  correspondence. 

Tenth. — That  the  arbiter  chosen  was  the  Prince-President,  and 
before  the  award  was  delivered  he  became  Emperor,  contrary  to 
the  treaty  stipulations.  The  treaty  merely  stipulated  for  the 
reference  to  the  "  sovereign  potentate  or  chief  of  some  friendly 
nation  who  shall  be  chosen  by  the  two  high  contracting  parties." 

The  evidence  shows  that  the  award  was  rendered  while  Louis 


BRIEF   OF   THE   U.    8.    8OLICITOE.  101 

Napoleon  was  Prince-President,  and  the  minister  of  the  United 
States  was  notified  of  the  fact  during  the  presidency.  (See  Senate 
Doc.  No.  24,  32nd  Cong.  2d  sess.)  The  fact  that  copies  of  the 
award  were  not  received  till  after  the  Prince-President  had  assumed 
a  new  title,  cannot  affect  the  validity  of  the  award,  any  more  than 
if  he  had  died  in  the  meantime,  and  the  award  had  been  certified 
by  his  successor  in  office. 

Ekventh. — Claimants  protested  when  the  award  was  made  known 
to  them  ;  but  Secretaries  Everett  and  Marcy  informed  them  that  it 
ivas  conclusive. 

Twelfth. — The  award  does  not  decide  any  question  of  public  law, 
.ind  therefore  does  not  comply  with  the  terms  of  the  treaty.  (This 
objection  answered  under  point  eight  ;  see  also  thirteen.)  Misstate- 
jaents  in  the  award,  Portuguese  arguments  adopted,  and  inference 
ihat  Portuguese  had  a  hearing  when  denied  to  American  (require 
jo  answer.) 

Thirteenth. — Award  contradictory.  1.  Charges  violation  of 
neutrality  on  both  belligerents.  (This  was  true.)  2.  Weakness 
of  Portuguese  power  at  Fayal,  and  Captain  Reid's  own  resort  to 
arms.  These  are  two  independent  and  distinct  grounds  for  exempt- 
ing Portugal  from  liability,  which  are  not  inconsistent  with  each 
other.  One,  that  the  local  officers  were  not  appealed  to  in  proper 
time  ;  and  the  other,  that  when  appealed  to,  they  had  not  the 
power  to  protect  the  American  brig. 

The  denial,  by  the  claimants,  that  the  first  aggression  proceeded 
from  the  brig,  has  been  considered  above.  But  the  fact  stated 
and  held  to  be  equally  conclusive  by  the  award,  that  the  weakness  of 
the  Portuguese  garrison  at  Fayal  rendered  all  armed  intervention 
impossible,  is  recognized  as  true  by  Captain  Reid  in  his  protest. 
(See  p.  5,  Doc.  No.  14.)  But  whilst  the  fact  is  admitted,  the  law 
is  controverted,  and  it  is  maintained  that  Portugal  is  bound  to 
indemnify  the  owners,  &c.,  of  the  brig,  although  they  were  unable 
io  protect  her. 

This  doctrine  asserted  by  Messrs.  Hopkins  and  Clay,  and  the 


102  BBIG    GENERAL   ARMSTKONG. 

claimants,  dogmatically,  is  unsustained  by  authority.  Against  it 
the  Portuguese  ministers,  in  the  letters  above  cited,  refer  to 
numerous  authorities,  and  maintain  their  position  by  great  force 
of  argument.  (See  particularly  Mr.  Figaniere  to  Mr.  Clayton, 
p.  101,  July  9,  1850.  See  also  the  speeches  of  Senators  Fessenden, 
404-'5,  645  ;  Dawson,  409  ;  Stuart,  403,  in  Congressional  Globe, 
vol.  30  ;  also  the  speech  of  Senator  Pearee,  of  Maryland,  in  vol. 
31,  p.  158,  and  quotations  therein  from  Wheatonrs  Elements  of 
International  Law,  directly  in  point.) 

It  is  contended,  also,  that  the  duty  of  a  neutral  extends  only  to 
the  institution  and  prosecution  of  proceedings  for  restoration  of  the 
specific  property.  Captain  Reid  having  set  fire  to  his  own  vessel, 
he  put  it  out  of  the  power  of  Portugal  to  institute  any  proceedings 
for  this  purpose,  or  in  any  way  to  try  judicially  the  controversy  as 
to  the  first  aggression.  (See  Wheaton's  Elements,  pp.  497 -'8.) 

On  their  own  showing,  it  is  plain  that  the  claimants  had  no 
right  to  indemnity  from  Portugal. 

If  it  were  otherwise,  and  on  the  weight  of  the  evidence  now 
submitted,  the  court  should  be  of  opinion  that  the  arbitrator,  to 
whom  the  evidence  on  both  sides  was  submitted,  had  decided 
against  law  and  evidence,  the  award  is  nevertheless  conclusive. 
(Boston  Water-power  Co.  vs.  Gray,  6  Met.  131.) 

•Nor  would  it  be  less  conclusive  if  the  court  should  be  of  opinion 
that  the  imputations  upon  Mr.  Webster's  management  of  the  case 
were  well  founded.  The  doctrine  that  the  government  must  pay 
such  individual  losses  as  may  be  supposed  to  result  from  the  incom- 
petency,  negligence,  or  bad  management  of  officers  in  the  conduct 
of  public  affairs,  is  inadmissible  ;  no  such  pretension  was  ever  set 
up  before.  (See  opinion  of  Attorney-General  Gushing,  on  appli- 
cation of  the  Peruvian  government  for  indemnity  for  neglect  of  duty 
by  marshal  of  California.)  The  allegation  that  the  payment  of  the 
other  claims  was  a  bonus  for  the  submission  of  this  to  arbitration, 
is  an  attempt  to  show  a  consideration.  But  if  in  point  of  fact  the 
United  States  had  entered  into  the  arbitration  in  consideration  of 


BRIEF   OF  THE   D.    8.    SOLIOITOE.  103 

each  payment,  the  payment  was  to  private  claimants,  and  the 
arbitration  was  not  a  release  of  Reid's  claim. 

This  effort  to  put  this  claim  on  the  footing  of  the  claims  for 
French  spoliations,  is  considered  and  answered  by  Mr.  Benjamin, 
page  53*7,  Congressional  Globe,  February,  1855  ;  who  shows  also 
conclusively,  that  if  every  allegation  made  in  support  of  the  claim 
was  fully  sustained,  it  is  wholly  untenable,  and  that  the  allowance 
of  it  will  be  followed  by  most  mischievous  consequences. 

The  act  of  1834,  donating  $10,000  to  the  captain  and  crew 
referred  to  by  Mr.  Fessenden  and  others,  shows  that  Congress  has 
already  recognized  their  gallantry  appropriately  ;  and  when  it  is 
recollected  that  the  brig  was  fitted  out  to  carry  on  privateering  as 
a  business  speculation,  I  think  that  recognition  sufficient. 

But  whether  sufficient  or  not,  is  not  here  properly  to  be  con- 
sidered, as  this  claim  ought  to  be  decided  on  its  legal  merits, 
without  regard  to  the  gallantry  displayed  by  the  officers  and  crew 
of  the  "  General  Armstrong  "  at  Fayal. 

The  heroic  commander  and  his  crew  are  justly  entitled  to  the 
honor  and  gratitude  of  the  country,  all  admit ;  but  the  recital  of 
that  honorable  claim  ought  not  to  be  mixed  up  with  the  argument 
on  a  claim  for  money  dependent  on  legal  considerations,  and 
involving  principles  which  ought  to  be  decided  without  respect  to 

M.  BLAIR. 


104:  BRIG   GENERAL   ARMSTRONG. 


TUBSDAT,  27W  Novembtr. 

MR.  BLAIR,  the  solicitor  for  the  Government,  having  concluded  his 
argument  yesterday, 

CHARLES  O'CoNOR,  Esq.,  for  the  Claimants,  addressed  the  Court 
as  follows  : 

MAY  IT  PLEASE  THE  COURT, 

The  claim  now  presented  for  adjudication  may  be  placed 
upon  several  distinct  grounds. 

In  the  first  place,  we  contend  that  the  General  Armstrong  was 
employed  by  her  officers  and  crew  in  the  service  of  the  United 
States,  and  against  the  public  enemy,  under  such  circumstances  that, 
on  being  advised  of  the  facts,  and  of  the  great  benefit  which 
resulted  therefrom  to  the  country,  it  became  the  government,  as  a 
matter  of  equity,  to  adopt  the  act,  and  to  idemnify  the  parties 
against  the  expense  incurred. 

Our  second  general  head  embraces  the  following  elements.  The 
General  Armstrong,  whilst  lying  in  the  Port  of  Fayal,  was  entitled 
to  absolute  protection  from  the  Portuguese  government.  That 
protection  was  not  afforded ;  in  violation  of  the  neutrality  of  that 
port,  she  was  destroyed  by  the  forces  of  a  British  squadron  ;  and 
for  this  delinquency  on  the  part  of  Portugal,  her  owners  had  a 
perfect  right,  by  the  law  of  nations,  to  be  fully  indemnified.  The 
owners  had  themselves  no  legal  capacity  to  prosecute  this  claim 
directly  ;  but,  on  establishing  its  validity,  they  were  entitled  to 
redress  through  the  action  of  their  own  government  against  that  of 
Portugal.  The  United  States,  accordingly,  investigated  the  claim 
decided  in  favor  of  its  justice,  assumed  the  control  of  it,  and 
entered  upon  the  duty  of  enforcing  it.  Instead,  however,  of 
prosecuting  it  to  an  issue  by  legitimate  means,  the  government 
receded  from  its  duty  in  that  respect,  and  actually  extinguished  the 
claim,  whereby  a  right  has  accrued  to  the  owners  to  demand 
compensation  from  the  public  treasury. 


SPEECH   OF   CHARLES   o'cONOE,  ESQ.  105 

Each  step  in  the  argument  by  which  these  conclusions  are 
arrived  at,  seems  to  us  quite  clear  and  intelligible,  but  the  learned 
Solicitor  for  the  government  has  advanced  a  great  variety  of 
objections,  and  it  is  principally  in  answering  these  that  we  shall 
engage  the  time  and  attention  of  your  Honors. 

The  absence  of  precedents  has  been  urged  against  us,  and  we 
have  been  called  upon  to  produce  from  the  books  of  the  common 
law,  some  instance  of  an  action  brought,  a  trial  had,  and  a 
judgment  rendered  for  the  plaintiff  upon  a  claim  like  the  present. 
We  cannot  comply  with  this  unreasonable  demand ;  but  neither 
can  we  admit  that  our  claim  should  suffer  on  that  account.  The 
nation  itself  is  here  a  defendant,  responding  to  the  claim  of  a 
private  suitor  for  reparation  of  injuries  sustained — a  thing  unparal 
leled  in  jurisprudence.  The  Court  itself  is  the  first-born  of  a  new 
judicial  era.  Consequently,  we  cannot  hope  to  find  among  the 
narrow  rules  and  practical  formulae  which  ordinarily  govern  in 
determining  mere  questions  of  property  between  citizen  and  citizen, 
the  lights  which  are  to  guide  its  judgment.  As  a  judicial  tribunal, 
it  is  not  merely  new  in  the  instance:  it  is  also  new  in  principle. 
So  far  as  concerns  the  power  of  courts  to  afford  redress,  it  has 
heretofore  been  fundamental  that  the  Sovereign  can  do  no  wrong. 
This  court  was  erected  as  a  practical  negative  upon  that  vicious 
maxim.  Henceforth  our  government  repudiates  the  arrogant 
assumption,  and  consents  to  meet  at  the  bar  of  enlightened  justice 
every  rightful  claimant,  how  lowly  soever  his  condition  may  be. 

Whence  is  such  a  tribunal  to  extract  the  principles  by  which  its 
action  is  to  be  governed — by  which  it  shall  test  and  allow  or 
disallow  the  claims  which  may  come  before  it  ?  In  ordinary  cases 
of  specific  rights  declared  by  some  particular  statute  or  regulation, 
its  path  may  be  easy.  But  in  those  extraordinary  cases  which  are 
dependent  upon  principles  not  hitherto  falling  within  the  judicial 
authority,  which  have  never  been  enforced  against  the  State,  and 
which,  consequently,  courts  have  never  declared  in  their  judgments 
or  illustrated  in  their  opinions,  difficulties  may  be  encountered  at 


BEIG   GENERAL   ARMSTRONG. 

.  i 

the  outset.  To  meet  and  surmount  these,  if  they  exist,  is  one  of 
the  high  and  responsible  duties  devolved  upon  your  Honors,  as 
pioneers  in  this  newly  opened  chapter  of  juridical  science. 

Though  without  exact  precedents,  you  are  not  wholly  without 
chart  or  compass.  A  reference  to  the  origin  and  growth  of 
jurisprudence,  in  instances  the  most  analogous,  will  furnish  a 
Sufficient  guide. 

Rights  and  their  correlative  duties  are  divided  into  two  classes, 
that  is  to  say,  the  perfect  and  the  imperfect.  The  only  difference 
between  these  classes  is  in  external  circumstances — intrinsically  or 
morally  there  is  none.  Perfect  rights  are  those  which  may  be 
enforced  by  established  remedies ;  perfect  duties  are  those  the 
performance  of  which  may  be  coerced  :  a  right  of  imperfect  obligation 
is  one  for  the  enforcement  of  which  no  remedy  is  provided.  Jurispru- 
dence, as  administered  by  human  tribunals,  deals  only  with  the  means 
of  enforcing  rights  which  are  recognized  as  perfect:  but  like  all  moral 
sciences  it  is  capable  of  improvement.  As  the  general  mind  of  a 
nation  advances  in  that  freedom  which  is  the  result  of  increased 
knowledge,  the  legislative  authority  will  constantly  enlarge  the 
sphere  of  action  assigned  to  jurisprudence,  and  increase  its  power 
of  establishing  justice.  Jurisprudence  is  only  the  means,  justice  is 
the  end.  Jurisprudence  is  of  human  origin  :  justice  is  an  attribute 
of  divinity;  pre-existent  of  all  created  things,  eternal  and  immu- 
table. Its  authority  is  not  derived  from  any  human  code,  either  of 
positive  institution  or  of  customary  reception;  its  decrees  are  found 
in  the  voice  of  God  speaking  to  the  heart  which  faith  has  purified 
to  receive  and  reason  enlightened  with  capacity  to  understand. 

When  thus  aided  by  the  legislature,  jurisprudence  is  enabled  to 
enlarge  the  circle  of  perfect  rights,  by  furnishing  from  time  to  time, 
new  instrumentalities  for  enforcing  justice.  Est  boni  judicis  ampH- 
are  jurisdictionem,  is  a  sound  and  unexceptionable  maxim ;  for  the 
exercise  of  jurisdiction  is  but  giving  to  men  in  a  practical  form,  the 
behests  of  divine  justice,  and  enforcing  their  observance.  This  ia 
well  illustrated  by  the  rise  and  progress  of  the  English  law.  In 


SPEECH   OF   CHARLES   o'cONOB,  ESQ.  107 

the  lofty  growth  of  equity,  by  the  side  of  its  stunted  rival,  the 
common  law,  we  see  by  what  means  rights  founded  iii  justice  and 
conscience,  but  not  yet  recognized  by  positive  law,  may  rise  in 
grade,  acquire  recognition,  and  become  enforceable  by  adequate 
remedies.  In  that  example,  this  court  will  find  the  best  lights 
for  its  government.  In  our  early  law-books,  we  find  it  urged,  and 
admitted,  that  "Every  right  must  have  a  remedy."  But  Lord 
Chief  Justice  Vaughan  stripped  this  common-place  of  all  its  force, 
by  replying  "Where  there  is  no  remedy  there  can  be  no  right." 
The  common  law  judges  of  England,  always  acted  upon  the  princi- 
ple embodied  in  this  remark.  From  their  rigid  adherence  to  it, 
arose  the  necessity  of  a  distinct  jurisdiction — the  power  of  equity 
to  compel  an  observance  of  those  duties  which  conscience  enjoined, 
but  which  positive  law  had  provided  no  means  of  enforcing. 

The  ordinary  courts  of  law,  are  not  created  to  declare  or  enforce 
justice  in  the  abstract,  or  justice  in  general.  (See  note  a.  to  De 
Bode  vs.  Regina,  13  Queen's  Bench  R.  387.)  Their  function  is  to 
effectuate  such  human  rights  only  as,  in  the  existing  stage  of  its 
progress,  jurisprudence  is  enabled  to  bring  within  the  sphere  of  its 
remedial  forms,  leaving  all  others  to  be  sought  by  entreaty,  and 
yielded  by  free-will.  The  judge  is  obliged  to  dismiss  every  claim, 
however  just,  for  enforcing  which  he  cannot  find  an  appropriate 
writ  in  the  register;  and,  consequently,  the  regret  of  the  Bench 
and  a  deep  censure  upon  the  defendant,  is  often  expressed  in  the 
same  breath  with  a  judgment  denying  the  remedy  sought. 

This  was  strikingly  exemplified  in  the  case  of  Jackson  vs.  Bar- 
tholomew, 20  Johnson's  Reports,  28.  An  honest  farmer  seeing  his 
neighbor's  wheat-stack  on  the  verge  of  being  consumed  by  fire  in 
the  owner's  absence,  voluntarily  assumed  the  task  of  saving  it, 
and  did  so  at  a  slight  cost.  Reimbursement  being  churlishly  refused, 
he  brought  an  action  in  a  justice's  court,  and  the  rustic  magistrate, 
not  learned  enough  to  know  that  legal  policy  sometimes  stifles  the 
voice  of  conscience,  decided  in  favor  of  the  plaintiff.  The  defend- 
ant appealed;  and,  when  reversing  the  decision  on  the  ground  that 


108  BKIO   GENERAL   ARMSTRONG. 

for  a  service,  however  beneficial,  rendered  without  a  previous 
request,  no  action  lay,  the  Supreme  Court  of  New  York  denounced 
the  defendant's  conduct  as  "  most  unworthy."  In  this  censure  all 
honest  men  must  concur.  No  one  could  doubt  that  had  the  owner 
of  the  wheat  been  present  at  the  moment  of  peril,  he  would  have 
requested  aid,  and  promised  compensation.  An  honest  man  would 
have  conceded  this,  ratified  his  neighbor's  kind  intervention,  and 
promptly  repaid  his  expenditure;  but  selfishness  saw  that  this  was 
a  duty  of  imperfect  obligation,  and  a  callous  conscience  dishonorably 
refused  to  perform  it. 

The  equity  jurisdiction  of  Great  Britain  has  been  considered  as  an 
anomaly  in  legal  science.  Continental  jurists  seem  never  to  have 
comprehended  it — though  it  could  easily  be  shown  that  no  civil 
society  ever  existed  in  which  there  were  not  some  remediable  forms  of 
injustice  which  Lex  non  exade  definit  sed  arbitrio  boni  viri  permittit. 
(Story's  Eq.  Jur.  §§  8.  9.)  Institutions  which  are  novel  in  form, 
will  always  excite  criticism  and  opposition,  however  harmonious 
they  may  be,  in  principle,  with  what  has  gone  before.  But  the 
difficulties  which  may  beset  the  path  of  this  court,  at  the  outset  of 
its  high  career,  cannot  be  greater  than  those  which  surrounded  the 
early  English  chancellors  in  their  efforts  to  mitigate  the  rigor  and 
supply  the  imperfections  of  positive  law.  They  had  no  judicial 
precedents  to  guide  them  in  stilling  the  waves  of  contention;  the 
great  unwritten  law  of  natural  justice,  alone  governed.  They 
claimed  to  deal  with  matters  binding  in  conscience  only,  and  the 
power  to  enforce  its  dictates.  At  every  step  they  had  to  con- 
tend with  the  argument  now  urged  against  us,  that  there  was  no 
legal  remedy,  and  consequently  the  law  left  it  optional  with  the 
defendant  how  to  demean  himself  in  the  premises.  As  in  the  pre- 
sent case,  the  law — the  law  was  dinned  into  the  ears  of  the 
court  by  the  advocates  of  wrong,  with  loudness  and  perti- 
nacity; but  the  clamor  was  unavailing.  Without  aid  from  pre- 
cedents, but  guided  by  principles,  the  courts  grappled  with, 
and  mastered  the  devices  of  iniquity.  Justice  I  Equity  1  Con- 


SPEECH   OF   CHARLES   o'cONOK,  ESQ.  109 

Science!  words  without  definition,  and  incapable  of  being  defined, 
alone  prescribed  their  jurisdiction,  and  neither  legal  or  politi- 
cal science  had  any  further  connection  with  the  new  cases 
arising  before  them,  than  to  aid  in  solving  the  question  how  far 
state  policy  would  admit  of  right  being  done  to  the  injured  suitor. 

To  the  precise  extent  which  a  due  regard  to  public  policy  would 
admit,  the  masters  of  equity  encroached  upon  the  territory  of 
imperfect  duties,  making  firm  land  wheresoever  they  trod.  Thus, 
they  gradually  redeemed  from  the  outlawry  to  which  ignorance  or 
inexpertuess  had  consigned  them,  a  large  class  of  imperfect  rights, 
and  enforced  a  large  class  of  duties  before  deemed  imperfect — 
because  not  enforceable — but  which  were  always  obligatory  in  the 
eyes  of  God,  and  were  always  voluntarily  performed  by  honest  men. 

Prior  to  the  institution  of  this  Court,  all  rights,  as  against  the 
nation,  were  imperfect  in  the  legal  sense  of  the  term — every  duty 
of  the  nation  was  a  duty  of  imperfect  obligation.  There  was  no 
judicial  power  capable  of  declaring  either — no  private  person  pos- 
sessed the  means  of  enforcing  the  one,  or  coercing  the  other.  These 
rights  may  be  deemed  still  to  remain,  in  one  sense,  imperfect ;  for 
the  decrees  of  this  Court  cannot  be  carried  into  execution  by 
authority  of  the  Court  itself.  But  effectual  progress  has  been 
made  toward  giving  form  and  method  to  the  administration  of  jus- 
tice between  the  nation  and  the  individual.  This  Court  enables 
the  latter  to  obtain  an  authoritative  recognition  of  his  right.  No 
more  is  needed;  for  in  no  case  can  a  State,  after  such  a  recognition, 
withhold  payment  and  yet  retain  its  place  in  the  great  family  of 
civilized  nations.  The  ordinary  jurisdiction  of  the  Court  bears  a 
strong  resemblance  to  the  narrow  cognizance  at  common  law ;  but 
its  extraordinary  jurisdiction  over  "  all  claims  which  may  be 
referred  to  it  by  either  house  of  Congress "  extends  its  power  to 
the  utmost  limits  attainable  by  juridical  science  in  its  fullest  develop- 
ment. In  this  aspect,  its  dignity  and  importance  as  a  governmental 
institution  cannot  be  too  highly  appreciated.  As  a  means  by  which 
rightful  claims  against  the  government  may  be  readily  established, 


110  BRIG  GENERAL  ARMSTRONG. 

and  those  not  founded  in  justice  promptly  driven  from  the  portals 
of  Congress,  it  must  exercise  a  most  healthful  influence.  But  we 
are  authorized  to  look  higher  than  the  mere  convenience  of  suitors, 
and  the  dispatch  of  public  business.  Enlightened  patriotism  will 
contemplate  other  and  more  important  consequences.  Caprice  can 
no  longer  control.  Here  equity,  morality,  honor  and  good  con- 
science must  be  practically  applied  to  the  determination  of  claims, 
and  the  actual  authority  of  these  principles  over  governmental 
action  ascertained,  declared  and  illustrated  in  permanent  and  abid- 
ing forms.  As  step  by  step,  in  successive  decisions,  you  shall  hav« 
ascertained  the  duties  of  government  toward  the  citizen,  fixed  their 
precise  limits  upon  sound  principles,  and  armed  the  claimant  with 
means  of  securing  their  enforcement,  a  code  will  grow  up,  giving 
effect  to  many  rights  not  heretofore  practically  acknowledged*  In 
it  will  be  found  enshrined  for  the  admiration  of  succeeding  ages  an 
honorable  portraiture  of  our  national  morality,  and  a  full  vindica 
tion  of  the  eulogium  recently  pronounced  upon  our  people  by  the 
highest  authority  in  the  parent  State.  "  Jurisprudence,"  says  Lord 
Campbell,  in  the  Queen  vs.  Millis,  10  Clarke  4*  Finelly,  711,  "in 
the  department  of  human  knowledge  to  which  our  brethren  in  the 
United  States  of  America  have  chiefly  devoted  themselves,  and  in 
which  they  have  chiefly  excelled." 

Whilst  we  assert  that  this  Court  does  not  stand  super  antiquas 
vias  in  anything  which  concerns  mere  procedure,  and,  consequently, 
that  the  call  for  judicial  precedents  is  idle  and  unreasonable,  we 
admit  that  cases  arising  here  must  be  determined  in  conformity 
with  established  principles.  It  has  been  truly  said,  that  "  you 
have  no  power  to  invent  rights"  but  it  must  be  conceded  that  you 
have  express  power  to  invent  remedies.  The  seventh  section  of  the 
act  creating  the  court  provides  that  you  shall  prepare  to  be  laid 
before  Congress  for  enactment,  the  requisite  bill  or  bills  in  those 
cases  which  shall  have  received  your  "  favorable  decision,  in  such 
form  as,  if  enacted,  will  carry  such  decision  into  effect."  This, 
according  to  Mr.  Justice  Ashhurst,  in  Pasley  vs.  Freeman,  3  T.  R> 


SPEECH   OP   CHARLES   o'cONOR,  ESQ.  Ill 

63,  is  the  precise  method  of  dealing  with  cases  which  are  without 
precedent  in  the  known  practice  of  judicial  tribunals. 

We  agree  that  you  have  jurisdiction  only  over  that  class  of  cases 
which  are  claims  properly  so  called.  The  applicant  for  bounty  must 
go  elsewhere.  Grace  and  favor,  if  it  is  ever  proper  to  bestow  them, 
must  be  bestowed  as  heretofore,  by  Congress,  without  your  inter- 
ference. But  claims — claims  which  would  be  entitled,  as  between 
individuals,  to  recognition  and  enforcement  according  to  known 
principles  of  law,  or  upon  known  principles  of  equity,  are  to  be  vin- 
dicated and  established  by  this  court.  We  assert  no  more  than 
this,  except  so  far  as  the  nature  of  things  may  warrant  a  practical 
distinction  between  a  sovereign  state  and  an  individual.  In  this 
way  the  sphere  of  equity  may,  as  against  the  government,  admit  of 
some  expansion.  In  a  case  like  that  of  the  wheat-stack,  cited  from 
Johnson's  Reports,  a  court  constituted  as  this  is,  could  find  no  diffi- 
culty in  enforcing  the  claim  against  the  government.  If  a  large 
quantity  of  public  property,  or  any  other  great  public  interest,  were, 
at  this  moment,  in  danger  of  being  sacrificed,  under  circumstances 
rendering  it  impossible  to  apply  to  the  Executive  for  instructions  or 
for  the  means  of  saving  it,  we  insist  that  a  reference  of  the  volun- 
tary salvor's  claim  would  enable  this  court,  as  keeper  of  the  nation's 
conscience,  to  award  remuneration.  We  say  that  Government 
could  not,  any  more  than  the  owner  of  the  wheat-stack,  conscien- 
tiously withhold  compensation  in  such  a  case  ;  and  that,  if  the  claim 
should  be  sent  here,  this  court  would  be  bound  to  enforce  it.  State 
policy  may  forbid  that  equity  should  go  so  far  in  a  case  between 
individuals  as  to  compel  a  man  to  make  a  request,  as  it  were  nunc 
pro  tune.  But  why  may  not  government  ascertain,  through  a 
proper  judicial  investigation,  the  existence  and  binding  force  in 
equity  of  a  claim  upon  it,  which,  in  a  private  case,  no  honest  man 
would  hesitate  to  acknowledge^-which  no  gentleman  could  repu- 
diate without  dishonor  ? 

When  war  was  declared  in  1812,  this  republic  was  yet  in  the 
infancy  of  her  power.  We  could  scarcely  be  said  to  possess  either 


112  BRIG  GENEKAL  ABMSTBONG. 

au  army  or  a  navy.  Though,  in  the  achievement  of  oar  indepen- 
dence we  had  won  high  renown,  yet  physical  strength,  the  only  attri- 
bute which  can  enforce  respect  for  the  rights  of  a  nation,  was  not 
ours  to  any  great  extent,  and  was  not  imputed  to  us  by  any.  Our 
commercial  marine  had  often  been  plundered  with  impunity.  Even 
our  ships  of  war  had  not  been  exempt  from  search  and  impressment. 
War  with  France,  our  early  friend,  had  failed  to  protect  us  from 
insult,  and  it  was  in  an  absolutely  necessary  defence  of  our  exis- 
tence as  an  independent  state,  that  we  were  compelled  to  ven- 
ture upon  hostilities  with  the  greatest  power  of  ancient  or  modern 
times.  The  invasion  of  our  neutral  rights  in  navigating  the  ocean 
induced  the  measure,  the  vindication  of  them  was  its  immediate 
aim  and  object.  Annals  of  Thirteenth  Congress  pp.  1431, — 1419 
to  1427. 

Our  naval  reputation  at  that  time  may  be  judged  by  the  romantic 
temerity  with  which  the  Alert,  a  pitiful  little  English  gun-boat,  in  the 
first  month  of  the  war  bore  down  upon  the  Essex,  a  32  gun  frigate. 

Perhaps  we  seized  upon  an  opportune  moment,  for  Britain  was 
engaged  in  an  European  war  which  tasked  her  utmost  energies. 
Even  with  this  advantage  on  our  side,  the  contest  was  very 
unequal  ;  but,  when  at  length,  the  gigantic  power  of  Napoleon  was 
prostrated,  what  was  our  condition  ?  The  patroness  of  France 
under  her  restored  dynasty,  the  foremost  in  a  holy  alliance  of  all 
monarchical  Christendom,  with  her  thousand  ships,  and  her  victo- 
rious legions  relieved  from  every  other  occupation,  Britain  stood 
prepared  to  "  crush  us  at  a  blow."  Such,  all  will  remember,  was 
the  language  of  the  times  ;  and  naught  seemed  to  interpose 
between  her  resolve  and  its  execution  but  a  brief  time — as  much  as 
might  be  needed  to  conquer  intervening  space. 

Her  force  was  soon  felt.  The  sacred  Capitol  of  our  Union — the 
spot  consecrated  to  liberty  by  the  immortal  Washington — fell  into 
the  hands  of  her  mercenaries.  The  thunder  of  her  vauntings  was 
heard  along  our  coasts,  and  at  what  vital  point  her  apparently 
resistless  force  was  next  to  fall  upon  us,  none  could  tell. 


SPEECH   OF   CHAELES   o'cONOK,    ESQ.  113 

At  that  critical  juncture  (September  9th,  1814)  the  General 
Armstrong  set  sail  from  New  York  upon  a  cruise  designed  to  harass 
our  powerful  antagonist.  On  the  seventeenth  day  out  she  cast 
anchor  in  the  neutral  port  of  Fayal,  for  the  purpose  of  taking  in  a 
supply  of  water.  Soon  after,  on  the  same  day,  a  British  squadron, 
under  the  command  of  Captain  Lloyd,  consisting  of  a  seventy-four 
gun  ship,  a  frigate  of  thirty-eight  guns,  and  a  sloop  of  war  carry- 
ing eighteen  guns,  entered  that  port  for  the  same  purpose.  Two 
(  conflicts  took  place  between  the  American  privateer,  and  a  body 
of  armed  men  sent  in  boats  from  the  British  fleet  to  assail  her, 
which  terminated  in  the  destruction  of  the  privateer. 

This  violation  of  neutrality,  and  the  consequent  loss  of  our  pro- 
perty, entitled  us  to  demand  compensation  as  claimants  upon  the 
justice  of  Portugal. 

Questions  of  law  have  been  raised  as  to  this  asserted  liability  of 
Portugal.  These  we  must  dispose  of  in  the  first  place. 

It  is  said,  that  Captain  Reid,  having  himself  resorted  to  violence, 
and  struck  the  first  blow,  must  be  deemed  the  aggressor,  however 
apparent  it  may  have  been  that  such  resort  was  necessary  to  save 
his  vessel  from  capture.  It  is  also  said,  that  the  obligation  of  a 
neutral  to  make  compensation  in  such  cases  is  not  absolute  ;  that 
if  a  neutral,  at  the  time  and  place  of  the  aggression,  employs  all 
the  means  in  his  power  to  prevent  it,  this  is  all  that  can  be 
required.  Of  course,  in  this  connection,  it  is  conceded  that  if  there 
be  negligence  in  providing,  at  such  time  and  place,  the  amount  of 
defensive  force  which  might,  under  all  circumstances,  be  reasonably 
required,  or  if  there  was  a  failure  in  the  due  and  effectual  employment 
of  such  force,  from  pusillanimity,  gross  ignorance,  or  want  of  skill 
on  the  part  of  the  neutral,  responsibility  might  ensue.  What  sin- 
gular questions  for  discussion  between  nations  would  arise  in  the 
investigation  of  these  points !  In  following  out  to  its  consequences 
this  idea  of  limiting  national  responsibility  within  the  compass  of 
national  power,  it  is  said  that  property  unlawfully  seized  by  a  third 
power,  within  the  territory  of  a  neutral,  must  be  restored  by  the 


114:  BRIG    GENERAL   ARMSTRONG. 

com  ts  of  the  latter,  in  case  it  should  come  within  their  reach ;  but 
that  when  the  property  is  destroyed,  or  for  any  other  reason  cannot 
be  thus  subjected  to  legal  process,  the  neutral  is  only  bound  to  use 
his  best  exertions  to  procure  compensation. 

To  illustrate  what  is  meant  by  this  employment  of  his  best 
exertions,  it  is  argued  that  a  neutral  is  not  bound  to  go  to  war  in 
such  a  case  ;  that  it  would  be  unreasonable,  and,  consequently, 
unjust  to  require  a  feeble  State  to  involve  itself  in  hostilities  with  a 
powerful  aggressor  merely  for  the  sake  of  obtaining  justice  for  the 
stranger;  that  friendly  negotiation  and  urgent  entreaty  for  compen- 
sation constitute  the  whole  duty  of  a  weak  neutral  State,  whose  ter- 
ritory has  been  unlawfully  converted  into  a  theatre  of  war  by  a 
powerful  belligerent. 

Notwithstanding  their  palpable  absurdity,  these  doctrines  arc 
gravely  insisted  on.  From  a  perusal  of  the  correspondence  between 
the  two  governments,  it  might  be  thought  that  some  of  the  able  and 
patriotic  negotiators  who,  from  time  to  time,  sought  the  enforce- 
ment of  the  claim  against  Portugal,  conceded  these  doctrines ;  for  they 
condescended,  in  arguing  against  them,  to  discuss  the  evidence, 
relying,  as  they  well  might,  upon  its  insufficiency  to  excuse  Portugal, 
even  if  the  rule  of  law  was  as  contended  for.  We  shall  adopt  the 
same  line  of  argument ;  but  we  protest,  at  the  outset,  against  any 
such  inference  as  against  us.  We  do  not  acquiesce  in  any  of  these 
doctrines.  They  are  founded  in  the  grossest  misconception  of  pub- 
lic law,  and  a  singular  blindness  to  the  plainest  dictates  of  common 
sense.  We  proceed  to  prove  this,  seeking  thereby  to  establish  that 
— in  point  of  law — our  claim  was  perfectly  valid  against  Portugal, 
until  that  government  was  released  by  the  acquiescence  of  the 
United  States  in  Louis  Napoleon's  award. 

England  could  in  no  event  be  held  responsible  to  the  United 
States  or  to  the  aggrieved  parties.  As  between  belligerents  them- 
selves, it  is  the  right  of  each  to  make  war  upon  the  other,  his  sub- 
jects and  property,  wheresoever  he  can  find  them.  "A  capture 
made  within  neutral  waters  is,  as  between  enemies,  deemed  to  all 


SPEECH  OF  CHARLE8  o'cONOE,  ESQ.  115 

intents  and  purposes  rightful.  It  is  only  by  the  neutral  sovereign, 
that  its  legal  validity  can  be  called  in  question.  The  enemy  has  no 
rights  whatever ;  and  if  the  neutral  omits  or  declines  to  interpose 
a  claim,  the  property  (so  captured,)  is  condemnable,  jure  belli,  to 
the  captor."  "This,"  (says  the  Supreme  Court  in  The  Ann,  3d 
Wheatorfs  R.  435)  "is  a  clear  result  of  the  authorities,  and  the  doc- 
trine rests  on  well  established  principles  of  public  law."  True  it  is, 
that  Great  Britain  was  responsible  over  to  Portugal  for  any  sum 
which  she  might  be  obliged  to  pay — and  hence,  no  doubt,  the 
British  influence  in  procuring  Louis  Napoleon's  award — but  that 
was  a  question  altogether  between  Portugal  and  Great  Britain. 
We  had  no  claim  whatever  against  the  latter. 

It  is  affirmed,  on  all  hands,  that  belligerents  are  bound  to  abstain 
from  hostilities  within  neutral  territory,  and  that  any  violence, 
except  in  self-defence,  committed  by  them  within  such  territory  is 
unlawful.  It  is  unlawful  as  between  the  neutral  and  each  of  the 
belligerents.  The  injured  belligerent  may  claim  indemnity  from  the 
neutral,  the  neutral  may  demand  reimbursement  from  the  aggressor. 
We  refer  to  the  case  last  cited,  and  also  to  1  Wheaton  405  ;  4 
Wheaton  52;  Ibid.  298. 

The  rule  requiring  a  total  abstinence  from  hostilities  within 
neutral  territory,  has,  of  course,  the  same  limitation  which  is 
imposed  by  reason  and  necessity  in  every  other  case  where  violence 
is  prohibited.  The  right  of  self-defence  is  rightly  called  the  first 
law  of  nature.  The  arm  of  the  civil  magistrate  cannot  always  be 
extended  to  prevent  injury  to  the  citizen,  and  when  it  is  not  pre- 
sent for  his  defence,  he  is  not  bound  to  submit  unresistingly  to 
death  or  wounds.  When  the  danger  is  imminent,  and  safety  cannot 
otherwise  be  purchased,  the  assailed  party  may  always  defend  him- 
self, repelling  force  by  force.  The  same  authorities  which  assert 
that  a  belligerent  forfeits  all  claim  to  protection  from  a  neutral 
sovereign  by  commencing  hostilities  within  his  territory,  admit  this 
right  of  self-defence.  And  this,  let  it  be  noted,  is  not  the  privilege 
of  returning  a  blow ;  that,  indeed,  is  revenge  or  retribution  not  self- 


116  BEIG  GENERAL  AEM8TEON0. 

defence.  Self-defence  must  foresee,  anticipate,  and  defeat  the  tmlaw* 
fol  design  whilst  only  threatened  or  meditated.  Nothing  else  is 
defence.  Chief  Justice  Marshall  says,  in  The,  Anne,  3  Wheaton  435, 
that  "Whilst  lying  in  neutral  waters"  a  ship  is  "bodnd  to  abstain 
from  all  hostilities  except  in  self-defence"  Again  he  says,  that  ne 
vessel  in  sach  waters  "  is  bound  to  submit  to  search,  or  to  account 
(to  the  belligerent)  for  her  conduct  or  character."  In  a  case  some- 
what analogous  to  the  present,  The  Marianna  Flora,  1 1  Wheaton,  p 
1,  Mr.  Justice  Story  says,  in  reference  to  defensive  force  used  bj 
the  commander  of  a  ship  menaced  by  another,  "He  acted,  in  oui 
opinion,  with  entire  legal  propriety.  He  was  not  bound  to  fly  or  t« 
wait  until  he  was  crippled.  His  was  not  a  case  of  mere  remote 
danger,  but  of  imminent,  pressing,  and  present  danger.  He  had 
the  flag  of  his  country  to  maintain,  and  the  rights  of  his  cruiser  to 
vindicate."  It  will  be  seen,  therefore,  that  Captain  Reid's  acts  in 
defence  of  his  vessel  were  lawful;  that  they  involved  no  breach  of 
duty  on  his  part  towards^  Portugal,  and  that  they  in  no  degree 
lessened  the  duty  of  Portugal  to  protect  him. 

What  is  sometimes  called  local  and  temporary  allegiance,  but  is 
more  properly  termed  obedience,  is  due  to  every  government  from 
aliens  and  strangers  sojourning  within  its  jurisdiction.  The  neutral 
state  forbids  hostilities  within  its  territories  between  the  armies  or 
navies  of  belligerents,  precisely  as  the  civil  magistrate  forbids 
violence  between  individual  enemies.  By  his  laws  and  regulationsf 
he  absolutely  supersedes  the  law  of  nature,  and  promises  absolute 
protection  in  return  for  obedience.  We  may  admit  the  truism  that 
neither  men  nor  nations  can  go  further  in  the  performance  of  their 
obligations  than  the  employment  of  their  utmost  ability.  But  an 
obligation  like  that  tinder  consideration  is  never,  in  itself,  theoreti- 
cally, nor  for  any  practical  purpose,  subject  to  any  such  limitation. 
A  private  man's  obligations  are  no  longer  enforceable  in  fact,  when 
his  whole  means  of  payment  are  exhausted ;  but  after  that  event, 
he  remains  charged  with  the  residue  of  his  indebtedness  precisely  in 
the  same  degree  as  before.  Until  relieved  by  death,  or  released  by 


SPEECH  OF   CHAKLE8   o'cONOK,  ESQ.  117 

bankruptcy,  he  is  still  bound  to  his  creditor.  Poverty  and  weak- 
ness may  plead  for  indulgence,  but  neither  can  rightfully  demand  a 
release.  The  obligation  remains.  So  it  is  with  nations:  they  must 
perform  their  duties  or  cease  to  exist  There  is  no  bankrupt  act 
for  them ;  political  extinction  is  their  only  refuge  from  the  penalties 
of  unredeemed  responsibility. 

Although  some  crude  remarks  of  publicists  may  be  found  afford- 
ing a  slight  pretext  for  the  argument,  it  cannot  be  maintained 
that  the  duty  of  a  sovereign  to  afford  full  protection  to  the  stran- 
ger within  his  gates,  whose  presence  he  permits,  is  anything  less 
than  absolute,  or  that  the  duty  in  this  respect  of  a  weak  nation  is 
any  less  than  that  of  a  strong  and  powerful  one. 

When  a  private  individual  breaks  the  peace  and  does  an  injury 
to  another,  the  sovereign  power  subjects  him,  by  due  process  of 
law,  to  mulcts  and  penalties.  His  whole  estate,  if  necessary,  is 
sequestered  for  the  remuneration  of  the  injured  party.  Precisely 
the  same  measure  of  retribution  is  to  be  meted  out  for  the  like 
offence  when  committed  against  persons  or  property,  by  a  foreign 
nation. 

Belligerents  are  not  permitted  to  fit  out  ships  of  war,  or  augment 
their  force  in  the  ports  of  a  neutral;  but  all  nations  allow  their 
ports  to  be  visited  by  the  vessels  of  those  with  whom  they  are  ia 
amity,  for  the  purpose  of  obtaining  those  necessaries  of  life  which, 
are  equally  useful  in  peace  or  war.  Therefore,  it  was  entirely  pro- 
per for  the  American  privateer  and  the  British  squadron,  to  enter 
the  friendly  port  of  Fayal,  as  they  did,  to  supply  themselves 
with  water.  But  it  was  the  duty  of  both  to  preserve  the  peace 
while  there,  and  that  duty  was  enforced  to  the  utmost  against  the 
privateer,  by  the  Portuguese  authorities.  After  the  first  attack 
upon  the  General  Armstrong,  and  in  anticipation  of  the  second, 
Captain  Reid  sought  the  Governor's  permission  for  thirty  of  his 
countrymen,  then  on  shore  at  Fayal,  to  come  on  board  and  assist  in 
the  defence  of  his  vessel.  The  application  was  peremptorily  refused; 
and  Louis  Napoleon  in  his  award,  commends,  as  worthy  of  all 


118  BBIQ   GKNEEAL   AEM8TEONO. 

praise,  the  act  of  the  Governor  in  thus  effectually  preventing  an 
augmentation  of  the  American  force.  We  agree  that  this  was 
performing  precisely,  and  to  the  letter,  the  duty  of  Portugal 
towards  England.  But  we  insist,  however  excusable  the  Governor 
may  have  been,  from  want  of  power,  that  the  supreme  government 
of  Portugal  was  bound  effectively  to  have  prevented  hostilities 
against  those  who  were  restrained  by  its  laws  from  employing  their 
own  means  of  self-defence. 

The  learned  solicitor  asserted,  that  the  Portuguese  government 
was  not  bound  to  protect  strangers,  any  more  than  it  was  bound  to 
protect  its  own  people.  Perhaps  it  was  not.  It  is  the  duty  of  every 
government  to  protect  its  own  people,  and,  when  violence  has  been 
committed  upon  them,  to  enforce  redress  from  the  wrongdoer  to  the 
whole  extent  of  such  wrongdoer's  ability.  The  same  duty  exists  to 
preserve  the  peace  within  neutral  territory,  between  belligerent 
nations.  The  reason  is  obvious  -t  the  local  authority  compels  the  belli- 
gerent parties  to  keep  the  peace,  and  it  is  therefore  bound  to  protect 
them.  This  seems  to  us  so  plain,  so  obvious,  that  no  argument  is 
necessary  to  enforce  it.  Indeed,  the  general  proposition  is  not  denied  ; 
we  have  only  to  combat  an  attempt  to  fritter  it  away  in  practice  by 
subtle  distinctions.  The  extent  of  the  liability,  upon  the  part  of  the 
neutral  power,  to  furnish  compensation  from  its  own  treasury,  for  the 
losses  incurred  in  consequence  of  its  failure  to  keep  the  peace  within 
its  territories,  is  alone  disputed.  If  full  reparation  is  not  due  to 
the  stranger,  what  is  he  entitled  to  ?  The  attempts  to  answer  this 
question  are  ludicrous!  It  is  said  that  if  a  vessel  is  captured  in 
neutral  territory,  and  afterwards  comes  within  the  same  territory,  it 
should  be  restored  to  the  original  owner;  but  if  it  is  carried  off, 
and  does  not  return  within  the  neutral  territory,  then  the  neutral  is 
not  liable.  If  this  is  true,  then  the  total  destruction  of  property 
involves  no  liability  at  all,  for  the  neutral  cannot  deliver  up  that  which 
has  ceased  to  exist.  As  violence  cannot  always  be  prevented,  what 
is  the  duty  of  the  neutral  in  those  cases  where  destruction  ensues? 
The  learned  solicitor  says,  the  nation  whose  territory  has  been. 


SPEECH   OF   CHAKLES   o'cONOB,  ESQ.  119 

t 

invaded,  is  to  remonstrate  with  the  aggressor;  it  is  to  appeal  to 
him  in  the  name  of  justice,  reason,  and  friendship,  to  make  amends 
to  the  injured  party.  And  it  is  said,  if  these  means  fail,  the  injured 
party  can  claim  no  further  redress.  Can  this  be  law  ?  The  sove- 
reign to  whom  the  application  is  made,  is  the  unrighteous  transgres- 
sor; he  knows  that  the  reparation  sought  is  for  his  enemy.  He 
knows  also  that  he  has  only  to  refuse,  and  the  obligation  of  his 
neutral  friend  will  be  satisfied.  By  a  simple  refusal,  he  can  close 
the  transaction,  and  settle  the  account  for  ever.  If  this  were  really 
the  extent  of  the  neutral  liability,  the  whole  notion  of  a  right  to 
indemnity  would  be  the  merest  farce. 

We  insist  that  the  obligation  of  the  neutral  power  is  to  prevent 
hostilities,  if  practicable  ;  and,  if  that  be  impracticable,  then  to 
make  compensation  for  the  injury  sustained. 

The  notion  of  limiting  the  duty  to  prevention  or  to  the  employ- 
ment of  such  force  as  may  happen  to  be  at  the  spot  for  that  pur- 
pose, is  extremely  absurd.  It  can  rarely  be  in  the  power  even  of 
the  greatest  States  to  maintain  at  every  point  of  their  territories  a 
force  adequate  to  prevent  violations  of  their  neutrality.  Indeed, 
when  the  force  exists,  the  local  officer  is  not  always  justifiable  in 
employing  it.  If  the  commander  of  a  dozen  British  seventy-four 
gun  ships,  lying  in  one  of  our  ports,  where  they  had  touched  for 
provisions,  should  seize  a  Russian  ship,  refuse  to  surrender  her  to 
the  Marshal,  and,  as  Lloyd  did  at  Fayal,  threaten,  in  case  of  inter- 
ference with  his  capture,  to  bombard  the  town,  and  slaughter  its 
inhabitants,  would  the  local  authorities  be  bound  to  plunge  at  once 
into  the  horrors-  of  irregular  war  ?  In  most  cases  the  force  on  the 
spot  would  be  wholly  inadequate  to  effective  resistance.  But  when 
it  happens  otherwise,  we  doubt  the  expediency  of  such  a  resort. 
Vastly  less  mischief  would  result,  in  ordinary  cases,  from  leaving 
the  wrong  to  be  redressed  by  the  supreme  power.  Then,  if  war 
should  come,  it  would  be  met  with  fitting  preparation.  The  armed 
warrior,  not  the  women  and  children  of  a  peaceful  town,  would 
encounter  its  brunt.  We  deny  that  the  Governor  of  the  Azores 


120  BRIG   GENERAL   ARMSTRONG. 

could  properly  have  employed  his  military  force  in  open  war  upon 
the  fleet  of  a  powerful  nation,  which  was  not  only  the  friend  and 
ally,  but,  it  may  be  said,  the  protector  of  his  sovereign.  Even  if 
his  force  had  been  adequate,  the  act  would  have  been  rash  and 
injudicious.  It  is  quite  clear  that  in  such  cases  the  local  authori- 
ties should  most  generally  submit  to  the  violence,  leaving  it  to  the 
supreme  government  to  apply  the  proper  remedy.  And  it  is  equally 
clear  that  indemnity  is  the  only  remedial  justice  which  can  ordinarily 
be  had.  If  the  neutral  state  has  any  duty  to  perform,  it  is  the  pro- 
curement of  such  indemnity. 

In  the  obligations  which  thus  rest  upon  neutrals,  there  is  no  dif- 
ference between  strong  and  weak  nations.  We  commonly  say  that 
in  the  eye  of  the  law  all  men  are  equal.  So,  in  international  law, 
all  sovereigns  are  on  a  perfect  equality.  Consequently,  a  state, 
however  feeble,  cannot  maintain  its  rank  and  position  in  the  family 
of  nations,  without  performing  its  public  duties.  When  it  fails 
in  this  respect,  it  must  necessarily  fall  exactly  into  the  same  con- 
dition as  an  individal  engaged  in  trade,  who,  failing  to  pay  his 
debts,  and  to  perform  the  duties  of  his  station,  loses  all  credit  and 
position  among  his  fellow-men.  This  doctrine  is  reasonable  :  no 
other  would  be  tolerable.  A  feeble  state  has  at  its  command  a 
suitable  remedy  for  every  such  case.  When  wronged  by  a  power- 
ful nation,  it  may  invoke  the  reprobation  of  mankind,  by  a  proper 
exposition  of  the  act.  The  force  of  opinion  is  great,  and  nations 
have  been  constrained  to  respect  it  in  the  worst  of  times.  If  this 
resort  should  fail,  it  may  form  an  equal  alliance  with  other  states 
of  its  own  class,  or  it  may  seek  the  protection  of  one  more  power- 
ful. If  it  can  be  supposed  that  none  of  those  means  would  enable 
it  to  redeem  its  obligations,  nothing  can  be  clearer  than  that  it 
should  declare  itself  bankrupt,  and  relinquish  its  pretensions  to 
sovereignty. 

To  prove  that  for  injuries  to  property  sustained  by  a  belligerent, 
within  the  territory  of  a  neutral,  from  hostilities  there  unlawfully 
prosecuted  against  him  by  his  enemy,  the  neutral  sovereign  is  only 


SPEECH   OF  CHARLES   O'CONOK,  ESQ.  121 

bound  to  afford  the  measure  of  redress  which  may  be  within  his 
ability,  your  Honors  are  referred  to  the  text  of  certain  treaties 
between  the  United  States,  England,  France,  Russia,  and  Holland. 
We  there  find  stipulations  to  the  effect  that  each  nation  engages  to 
"  use  its  utmost  endeavors  to  obtain  from  the  offending  party  full 
and  ample  satisfaction  for  the  vessel  or  vessels  so  taken,"  or  to 
"  protect  and  defend  by  all  means  in  its  power  the  vessels,  &c.,  and 
restore  the  same  to  the  right  owner."  These  treaties  are  relied  upon 
as  full  evidence  of  the  sense  entertained  by  the  great  maritime  states, 
as  to  the  extent  of  the  obligations  of  neutrals  in  the  particular  now 
under  consideration.  It  is  claimed  that  they  are  not  merely  strong,  but 
decisive  evidence  of  the  jus  gentium.  We  admit  the  proposition  in  its 
broadest  extent.  It  only  remains,  then,  to  inquire  what  is  meant 
by  the  "  utmost  endeavors"  of  a  nation,  or  by  the  employment  of 
"  all  means  in  its  power."  Our  government  is  one  party  to  these 
treaties.  Do  we,  when  promising  to  use  our  utmost  endeavors  and 
all  means  in  our  power,  intend  to  say  that  we  will'  humbly  pray 
for  justice,  and  earnestly  expostulate  against  injustice  ?  Does  this 
involve  a  complete  exhaustion  of  all  the  means  in  our  power  ?  And 
if,  indeed,  we  are  so  weak  and  so  degraded  as  this,  is  Great 
Britain — is  powerful  and  martial  France,  with  more  than  forty  mil- 
lions of  warlike  subjects — equally  so  ?  The  small  kingdom  of  Hol- 
land is  also  a  party  to  these  treaties.  Surely  these  same  words,  in 
the  same  treaty,  do  not  mean  one  thing  as  applied  to  one  party, 
and  a  different  thing  as  applied  to  the  other  party  ?  We  respect- 
fully insist  that  the  rule,  as  expressed  in  the  text  of  our  writers  on 
international  law,  and  in  these  treaties,  means  nothing  less  than 
that  the  neutral  state  is  bound  to  obtain,  or  to  make,  restitution 
for  every  outrage  committed  upon  friendly  nations  within  its  limits, 
peacefully,  if  it  can,  forcibly,  if  it  must 

A  few  words  in  Mr.  Wheaton's  comment  upon  these  treaties,  are 
thought  to  favor  the  doctrine  of  limited  liability  now  contended  for. 
In  Mr.  Lawrence's  edition  of  the  Elements  of  International  Law,  p. 
491,  the  author  says :  "  They  were  not  bound  to  make  compen- 


122  BRIG   GENERAL   ARMSTRONG. 

sation,  if  all  the  means  in  their  power  were  used  and  failed  in  their 
effect."  But  he  does  not,  by  example  or  otherwise,  give  the  least 
clue  to  his  notions  concerning  the  means  which  must  be  used  by 
the  "  high  contracting  parties "  in  order  to  fulfill  the  obligation 
created  by  these  words.  Observing  upon  the  jurisdiction  over 
captures  in  neutral  territory  exercised  by  the  Admiralty  Courts 
of  the  neutral,  he  says  it  is  "  exercised  only  for  the  purpose  of 
restoring  the  specific  property,  and  does  not  extend  to  the  infliction 
of  vindictive  damages,  as  in  ordinary  cases  of  maritime  injuries." 
This  sentence  is  the  learned  solicitor's  leading  authority  for  the 
position  that  when  the  specific  property  is  destroyed,  the  neutral 
has  no  duty  to  perform.  An  important  distinction,  however, 
exists  between  the  obligations  of  a  sovereign  power,  which  are 
to  be  recognized  and  performed  through  its  executive,  and  the 
much  more  limited  field  of  admiralty  jurisdiction.  Of  course, 
a  Court  of  Admiralty  could  neither  draw  upon  the  public  treasury, 
nor  levy  war  upon  a  foreign  power.  But  we  can  find  in  Mr. 
Wheaton's  work  no  evidence  that  he  ever  intended  to  sanction  the 
doctrine  that  sovereign  power  can  excuse  itself  from  performing 
the  duties  of  sovereignty  on  the  plea  of  weakness. 

We  have  been  asked  whether  we  mean  to  insist  that  Portugal 
was  bound  to  go  to  war  ?  We  answer,  certainly  not.  Portugal 
owed  us  no  such  obligation.  The  question,  so  far  as  war  is  con- 
cerned, was,  whether  she  owed  that  measure  to  herself?  Her 
obligation  was  to  yield  us  protection,  and  having  failed  in  that, 
to  indemnify  us.  Whether  she  would  prosecute  a  claim  against 
Great  Britain  by  the  sword  or  otherwise,  for  reimbursement,  was 
altogether  her  own  affair.  If  she  was  so  weak  or  so  pusillani- 
mous as  to  waive  her  rights  in  this  respect,  we  certainly  could 
not  complain.  We  only  say  that  her  high  state  amongst  the 
powers  of  earth  required  her  to  protect  or  indemnify  us,  and  forbid 
her  to  plead  weakness  or  poverty  as  a  ground  of  exemption. 

The  unlimited  liability  of  the  neutral  in  such  cases  is  asserted  by 
the  highest  authorities  on  international  law.  It  is  asserted  in  the 


SPEECH   OF  CHAELES   o'cONOB,  ESQ.  123 

published  speeches  of  nearly  every  legislator  who  has  spoken  upon 
this  claim.  All  our  administrations  without  exception  have  main- 
tained it.  Portugal  herself  conceded  it  in  1814,  and  even  Louis 
Napoleon  admits  it.  He  says  in  his  award,  that  if  Captain  Reid 
had  not  released  her  by  his  own  conduct,  Portugal  was  under  an 
obligation  "  to  afford  him  protection  by  other  means  than  peaceful 
intervention."  The  original  liability  of  Portugal  is  therefore 
manifest,  unless  Captain  Reid,  by  some  misconduct  on  his  own 
part,  forfeited  the  protection  which  she  owed  him.  Whether  he  so 
misbehaved  is  a  question  of  fact  which  we  will  discuss  hereafter. 

The  next  question  of  law  is,  whether  the  enforcement  of  this 
claim  against  Portugal  devolved  upon  the  United  States  as  a 
public  duty. 

In  return  for  the  allegiance  claimed  by  the  sovereign,  says  Mr. 
Justice  Blackstone,  the  sovereign  "  is  always  under  an  obligation 
to  protect  his  subjects  at  all  times  and  in  all  countries."  And 
that  this  right  of  the  subject  "can  never  be  forfeited  by  any 
distance  of  place  or  time,  but  only  by  misconduct."  Wendell's 
Blackstone,  pp.  370,  371,  and  notes. 

The  Lord  Chancellor  of  England,  on  the  argument  of  Baron 
de  Bode's  case,  16  Eng.  L.  &  Eq.  Reports,  p.  23,  says,  *'  It  is 
admitted  law  that  if  the  subject  of  a  country  is  spoliated  by  a 
foreign  government,  he  is  entitled  to  obtain  redress  through  the 
means  of  his  own  government.  But  if  from  weakness,  timidity,  or 
other  cause  on  the  part  of  his  own  government,  no  redress  is  obtained 
from  the  foreigner,  then  he  has  a  claim  against  his  own  country." 

These  are  the  maxims  of  monarchy  at  this  day.  It  was  the 
pride  of  her,  who  in  ancient  times,  gave  law  to  men  and  nations, 
that  in  the  most  distant  climes  and  among  the  most  barbarous 
people,  "I  am  a  Roman  citizen,"  was  a  certain  passport  to  safety. 
Shall  it  be  said  that  our  republic  yields  a  less  perfect  protection  to 
her  citizens?  We  trust  not.  Mr.  Justice  Parker,  one  of  the 
most  eminent  of  American  jurists,  recognizes  the  rule  that  in  such 
cases  there  rests  "  an  obligation  on  the  government  of  the  United 


124  BRIG   GENERAL   ARMSTRONG. 

States  to  procure  redress  for  its  citizens,  or  itself  to  reimburse 
them."  Farnam  vs.  Brooks ;  9  Pickering's  Reports,  239.  On 
this  head  there  is  no  lack  of  precedents.  Half  the  diplomacy  of 
nations  has  been  devoted  to  obtaining  securities  for  their  merchants 
when  subjected  in  person  or  property  to  the  jurisdiction  of  other 
states  :  half  the  treaties  on  record  contain  provisions  for  ascertain- 
ing dues,  and  making  compensation  on  account  of  past  failures  in 
this  respect,  and  all  of  them  abound  with  mutual  pledges  of 
protection  for  the  future.  From  the  Father  of  his  Country  to  our 
present  Chief  Magistrate,  no  executive  has  sent  to  Congress  an 
annual  message  unmarked  with  recognitions  of  this  duty.  We 
defy  reference  to  a  single  instance  in  which  the  President  has  failed 
annually  to  apprise  Congress  of  his  progress  in  pending  efforts  to 
obtain  for  onr  citizens  redress  of  grievances  suffered  by  the  acts  or 
omissions  of  other  nations. 

The  duty  of  onr  government  in  this  respect,  cannot  be  denied. 
It  is  not  denied.  The  questions  are  how  far  did  that  duty  extend  ? 
was  there  any  failure  in  performing  it  ?  and,  if  so,  is  the  govern- 
ment responsible  for  the  consequences  ? 

Responsibility  is  denied  on  many  grounds. 

Ill  the  first  place,  we  are  told,  the  government  of  the  United 
States,  in  prosecuting  claims  against  foreign  powers  for  redress  of 
grievances  suffered  by  our  citizens,  is  merely  the  agent  of  th« 
injured  individual ;  and,  assuming  as  applicable  the  same  rules 
which  obtain  in  the  common  law,  concerning  the  private  relation  of 
principal  and  agent,  or,  more  exactly  speaking,  master  and  servant, 
it  is  said  that  the  claimants  did  not  object  to  the  treaty  with  Por- 
tugal, before  it  was  made,  or,  afterwards,  so  protest  against  it,  or 
against  the  action  had  under  it,  as  to  screen  themselves  from  the 
imputation  of  having  ratified  the  act  of  their  servant,  by  implied 
consent  or  acquiescence.  It  is  said  the  subsequent  action  of  the 
claimants  amounts  to  acquiescence — acquiescence  is  assent — assent 
is  ratification,  and  theh  comes  in  this  common  maxim  of  servile 
law,  "  a  subsequent  assent  is  equivalent  to  an  original  command." 


SPEECH   0V  CSAELE8   o'coNOK,  ESQ.  125 

On  the  other  hand,  and  with  equal  confidence,  it  is  asserted  that 
the  government  is  the  sole  judge  what  claims  of  the  citizen  it  will 
enforce,  in  what  manner,  at  what  time,  by  what  means,  and  to 
what  extent,  it  will  enforce  them.  It  may,  says  our  learned  oppo- 
nent, relinquish  them,  submit  them  to  arbitration  and  to  any  kind 
of  arbitrament  it  judges  to  be  expedient  in  reference  to  the  general 
interests  of  the  republic;  it  may  accept  a  compromise,  or  it  may 
release  them  without  compensation,  or  for  a  consideration  of  benefit 
or  convenience  to  the  public.  In  fine,  its  power  over  the  whole 
subject,  is  claimed  to  be  absolute  in  the  most  comprehensive  sense 
of  the  word,  no  responsibility  attaching  to  its  action,  whatever  that 
action  may  be. 

It  is  true,  that  when  laying  down  this  latter  proposition,  the 
government  solicitor  became  appalled  by  the  enormity  of  his  own 
doctrine.  First,  relieving  his  conscience  by  an  empty  admission 
that  it  would  be  wrong,  nay,  iniquitous,  to  sacrifice  a  private  right 
to  the  public  convenience,  he  endeavored  to  close  this  part  of  the 
discussion,  by  asserting  that  nothing  of  the  kind  had  ever  been  done 
in  the  whole  practice  of  the  government.  But  feeling,  as  he 
reached  it,  that  this  assertion  begged  the  very  question  before  the 
court ;  he  returned  like  a  stout-hearted  champion  to  his  starting 
point,  and  insisted  that  the  power  was  vested  in  our  government 
thus  to  deal  with,  traffic  in,  and  for  its  own  benefit,  dispose  of  the 
private  right  of  the  citizen,  without  any  responsibility  whatever. 

The  two  heads  of  exemption  from  liability  thus  advanced  for  the 
government,  are  manifestly  inconsistent.  It  must  be  admitted  that 
they  cannot  stand  together  j  we  hope  to  show  that  neither  of  them 
is  well  founded. 

How  can  the  government  be  an  agent  or  mere  servant,  liable  to 
be  restrained  by  the  master's  prohibition,  or  affected  by  his  subse- 
quent censure,  and,  at  the  same  time,  possess  absolute  discretionary 
power  over  the  whole  subject,  free  from  control,  restraint  or 
responsibility  ?  The  inconsistency  is  too  glaring. 

An  individual  despoiled  by  the   rapacity,  or  aggrieved  by  the 


BRIG   GENERAL  ARMSTRONG. 

negligence  of  a  foreign  power,  cannot  lawfully  wage  war,  or,  in 
any  other  form,  prosecute  directly  a  claim  for  indemnity.  His 
only  remedy  is  to  invoke  the  aid  of  his  own  government.  By  a 
fundamental  rule  of  the  social  compact,  sanctioned  by  immemorial 
practice,  every  community  is  bound  to  afford  this  kind  of  protection 
to  its  members.  And  when  a"  sovereign  state,  in  the  performance  of 
this  duty,  appears  as  a  prosecutor  for  redress  of  injuries,  the  claim- 
ant and  respondent  are  equal  in  power  and  dignity.  The  individual 
wrong-doer,  and  the  individual  sufferer,  are  alike  lost  sight  of.  The 
responding  state  cannot  avoid  liability,  by  delivering  up  for  sacri- 
fice its  agent  or  subject ;  neither  is  the  claiming  state  to  be 
deemed  a  mere  agent  of  the  aggrieved  person.  It  does  not 
act  in  the  name,  or  by  the  authority  of  the  injured  individual ;  but 
in  its  own  name,  and  right,  as  ultimate  and  paramount  lord  pro- 
prietor of  all  things,  and  sovereign  of  all  persons,  within  its  juris- 
diction. Between  these  "  high  contracting,"  or  high  contending 
parties  is  the  suit,  and  the  trial ;  between  them  must  be  the  judg- 
ment, whether  obtained  by  negotiation,  awarded  by  arbitrament, 
or  won  by  the  sword. — (5,  Howard's  U.  S.  R.,  391) 

As  the  respective  nations  are  the  parties,  and  the  only  known  or 
recognized  parties,  to  the  controversy,  it  necessarily  follows  that 
any  act  of  the  claiming  power  which  bars  its  right  of  farther  pro- 
secuting the  claim,  works  an  extinguishment  of  the  claim  itself — is, 
in  substance  and  effect,  a  release  to  the  respondent. 

The  methods  of  pursuing  such  a  claim  are  negotiation,  and  fail- 
ing that,  war,  or,  if  the  respondent  will  consent,  arbitration.  In 
all  cases  which  admit  of  its  application,  the  latter  is  a  resort 
favored  by  wisdom  and  humanity.  When  a  claim  is  mutually  sub- 
mitted to  arbitrament  and  determined  by  the  arbiter,  that  law  of 
honor  and  good  faith  which  nations  must  obey  (8  Paige  534), 
declares  the  award  to  be  final,  unless  a  just  and  defensible  cause 
can  be  assigned  for  disregarding  it.  If,  upon  its  publication, 
neither  party  protest  against  it,  the  award  becomes  conclusive, 
whatever  may  be  its  moral  or  legal  vices. 


SPEECH   OF   CHARLES   o'cONOKj  ESQ.  12  T 

In  the  present  case,  a  perfectly  valid  claim  against  Portugal  has 
been  destroyed  by  the  action  of  the  government.  We  will  prove 
this  by  the  evidence  before  your  Honors.  The  award  of  Louis 
Napoleon  stands  in  our  way,  and  is  relied  upon  as  an  estoppel.  In 
connection  with  our  review  of  the  merits,  we  hope  to  show  that  the 
award  is  void  as  against  us  ;  first,  forVant  of  jurisdiction;  secondly, 
because  the  government  did  not  place  before  the  arbiter,  but 
expressly  withheld  from  his  view  important  evidence,  which  afforded 
him  an  opportunity  to  decide  upon  facts  from  his  own  notions  or  ex 
parte  stories,  and  sanctioned  his  availing  himself  thereof ;  thirdly, 
because  it  refused  us  permission  to  be  heard  before  the  arbiter,  or 
to  present  an  argument  to  him  ;  and  lastly,  because  even  upon  the 
imperfect  proofs  presented  to  him,  the  award  is  manifestly  partial 
and  unjust. 

Pursuant  to  the  treaty  with  Portugal,  by  which  this  claim  was 
to  be  submitted  to  the  arbitrament  of  a  third  power,  the  Secretary 
of  State,  on  the  20th  of  March,  1851,  "  in  accordance,"  as  he  states, 
"  with  suggestions  made  by  M.  de  Figaniere"  (the  minister  of  Por- 
tugal), instructed  Mr.  Hadduck,  our'  representative  at  Lisbon, 
to  prepare  a  protocol,  with  certain  documents  annexed,  to  be 
authenticated  by  the  respective  governments,  and  laid  before  the 
arbiter.  The  President  of  the  French  Republic  was  first  named  ; 
and  in  case  he  should  decline  the  office,  King  Oscar,  of  Sweden,  was 
to  be  chosen  in  his  place. 

This  lettter  of  instructions  contains  a  very  singular  passage :  it  is 
in  these  words  : — "  You  will  understand,  of  course,  that  these 
copies  (i.  e.,  the  papers  to  be  annexed  to  the  protocol)  are  limited 
to  such  communications  as  have  passed  between  the  American 
legation  and  the  Portuguese  government  aP  Lisbon,  and  between 
this  department  and  the  Portuguese  legation  in  Washington." 
The  historical  fact,  that  at  the  time  of  the  occurrence,  and  when 
the  proofs  in  support  of  the  claim  were  first  made  up  and  presented, 
the  Portuguese  government  was  seated,  not  at  Lisbon,  but  at  Rio 
Janeiro,  renders  it  easy  to  perceive  why  the  Portuguese  minister 
suggested  this  singular  limitation  of  the  proofs  to  be  laid  before  the 


128  BRIG   GENERAL   ARMSTRONG. 

arbiter.  His  suggestion  was  craftily  made  and  unwarily  adopted 
Its  effect  was  to  carry  into  the  record  to  be  submitted  to  the 
arbiter  only  so  much  and  such  parts  of  the  evidence  as  happened 
to  be  incorporated  with  a  renewed  correspondence  on  the  subject, 
which  was  commenced  in  1834,  about  twenty  years  subsequently  to 
the  occurrence  of  the  outrage*  for  which  redress  was  sought.  We 
will  presently  show  that  this  instruction  caused  to  be  suppressed  at 
least  one  piece  of  evidence,  which  was  of  great  force,  and,  as  we 
conceive,  perfectly  conclusive  upon  the  very  point  of  Louis  Napo- 
leon's judgment.  By  the  12th  July,  1851,  the  Department  of 
State  was  apprised  of  its  mistake  ;  and,  in  a  dispatch  of  that  date 
to  Mr.  Hadduck,  after  calling  his  attention  to  the  restrictive 
phraseology  used  in  his  previous  instructions,  Mr.  Webster  says: — 
"  To  provide,  however,  against  the  omission  of  any  important  part 
of  the  earlier  portion  of  the  correspondence,  I  mean  that  which 
passed  in  1814  and  1815  in  Rio  Janeiro,  where  the  Court  of  For 
tugal  at  that  time  resided,  and  which  it  could  not  haw  leen  intendea 
to  exclude,  I  transmit  you  herewith  "  copies,  &c. 

The  latter  instructions  were  issued  from  the  Department  of  Stats 
at  Washington,  on  the  12th  July,  1851  ;  but,  on  the  9th  day  of 
the  same  month,  three  days  previously,  the  protocol  had  been  com 
pleted  at  Lisbon,  signed  and  sealed  by  the  respective  agents  of 
Portugal  and  of  the  United  States,  and  forwarded  to  the  arbiter 
This  is  expressly  stated  in  Mr.  Hadduck's  letter  to  the  Stato 
Department,  dated  11th  July,  1851. 

If  any  important  part  of  the  evidence  was  left  out  by  this  mis- 
adventure in  preparing  the  documents,  it  must  be  confessed  that 
the  case  was  not  properly  prepared.  The  solicitor  has  felt  the 
pressure  of  this  circumstance.  He  could  not  help  feeling  it ;  for 
we  have  read  from  the  dispatch  of  July  12,  1851,  an  express 
admission  by  the  Department  of  its  own  error.  The  answer  now 
given  to  this  objection  is,  that  everything  material  in  the  prior  cor 
respondence  was,  in  some  form,  repeated  in  that  which  was  annexed 
to  the  protocol.  But  the  fact  is  otherwise. 

Louis  Napoleon's  award  admits  expressly,  or  impliedly,  every 


SPEECH    OF   CHARLES   o'CGNOB,  ESQ.  129 

proposition  of  law  for  which  we  contend.  So  far  as  the  law  is  con- 
cerned, it  asserts  but  a  single  position  against  us,  to  wit:  that  a 
belligerent  who  commences  hostilities  within  the  territory  of  a 
neutral,  thereby  forfeits  all  claim  to  protection,  and  this  we  have 
never  denied.  The  Supreme  Court  of  the  United  States  has  often 
so  decided,  and  we  have  never  set  up  any  pretence  to  the  contrary. 
The  Anne  3,  Wheaton's  R.  435.  The .  point  of  the  award  is,  that 
Captain  Reid  and  his  gallant  companions  were  the  first  aggressors. 
It  goes  upon  a  mere  naked  question  of  fact.  How  manifestly 
important,  then,  was  it  that  the  contemporaneous  correspondence, 
and  all  the  testimony  taken  at  the  time  and  bearing  on  this  point, 
should  have  been  laid  before  the  arbiter. 

It  seems  that  Commodore  Lloyd,  the  commander  of  the  British 
squadron,  soon  after  the  transaction,  caused  to  be  prepared,  and 
sworn  to  by  Lieutenant  Fausset,  an  affidavit  giving  the  British  view 
of  the  facts.  No  full  copy  of  this  affidavit  was  furnished  to  the 
arbiter.  A  portion  of  it  is  found  in  the  letter  of  Mr.  James  B. 
Clay,  our  minister  at  Lisbon,  to  Count  Tojal,  Portuguese  Minister 
of  Foreign  Affairs,  dated  November  2d,  1849.  That  part  is  mani- 
festly false  ;  but  great  aid  in  developing  its  falsehood  would  almost 
necessarily  have  resulted  from  a  review  of  its  whole  contents. 
Here  was  a  serious  failure  on  the  part  of  our  government  in  its 
obligation  properly  to  collect  and  present  the  proofs. 

Immediately  after  the  occurrence  at  Fayal,  the  Marquis  D'Aguiar, 
the  Portuguese  Minister  of  Foreign  Affairs,  addressed  a  let- 
ter to  Lord  Strangford,  the  Minister  Plenipotentiary  of  Great 
Britain,  resident  at  the  Court  of  Rio  Janeiro,  in  which  he 
denounced  the  outrage  upon  the  General  Armstrong  as  an  "  auda- 
cious" and  an  "unprovoked  attack."  He  also  called  upon  the 
British  government  to  make  "  satisfaction  and  indemnity  not  only 
to  the  subjects  of  Portugal,  but  for  the  American  privateer,  whose 
security  was  guarantied  by  the  safeguard  of  a  neutral  port."  la 
the  same  letter,  the  Portuguese  minister  "  nails  to  the  counter,"  as 
a  base  falsehood,  the  pretence  of  Captain  Lloyd,  embodied  in 

10 

I 


130  BEIG   GENEEAL   ARMSTRONG. 

Lieutenant  Fausset's  affidavit,  and  which  Louis  Napoleon  has 
sought  to  consecrate  as  truth,  thereby,  as  far  as  in  him  lay,  falsify- 
ing American  history,  and  dishonoring  the  American  name. 

Thus  speaks  the  Marquis  D'Aguiar: — "  His  Excellency  (Lord 
Strangford)  will  likewise  observe  the  base  attempt  of  the  British 
commander,  at  the  time  he  commenced  the  unprovoked  attack  on 
the  American  privateer,  'to  attribute  those  violent  measures  to  the 
breaking  of  the  neutrality  on  the  part  of  the  Americans  in  the  first 
instance,  by  repelling  the  armed  barges  that  were  sent  for  the  pur- 
pose of  reconnoitering  that  vessel,  advocating,-  with  the  most  mani- 
fest duplicity,  that  they  (the  Americans)  were  consequently  the 
aggressors  ;  but  what  appears  still  more  surprising,  is  the  arrogance 
with  which  the  British  commander  threatened  to  consider  the  terri- 
tory of  his  Royal  Highness  (the  Prince  Regent  of  Portugal)  as 
enemies,  should  the  Governor  adopt  any  measures  to  prevent  them 
from  taking  possession  of  the  American  privateer,  which  they  sub- 
sequently plundered  and  set  on  fire." 

Some  allusions  to  this  letter  were,  indeed,  contained  in  the  cor- 
respondence submitted  to  the  arbiter;  but  no  copy  of  it,  or  of  these 
important  parts  of  it,  was  laid  before  him.  This,  the  learned  solici- 
tor tells  us,  was  an  unimportant  omission,  because  the  Portuguese 
Minister  of  State  could  only  judge  from  the  evidence;  that  his  view 
of  it,  if  erroneous,  was  not  conclusive  upon  his  government,  and  that 
Louis  Napoleon  was  bound  to  exercise  an  independent  judgment 
on  the  evidence  itself.  Admitting,  for  the  sake  of  the  argument, 
that  all  the  facts  were  laid  before  Louis  Napoleon  (which  was  not 
the  case),  it  cannot  be  maintained  that  this  letter  did  not  contain 
important  mattej  for  his  consideration.  He  had  assumed  to  decide 
a  contested  fact  of  considerable  antiquity.  The  witnesses  were  not 
personally  produced  before  him  ;  no  truth-eliciting  cross-examina- 
tion could  be  had,  no  oral  dissection  or  discussion  of  the  proofs  was 
allowed.  Was  it  an  unimportant  fact  that  the  defendant  in  the  cause 
— Portugal  herself — had,  through  her  highest  authorities,  solemnly, 
and  at  the  very  moment  of  the  transaction,  acknowledged  the 


SPEECH  OF  CHARLES   o'cONOK^  ESQ. 


truth  of  Captain  Reid's  statement,  and  stamped  as  base  duplicity 
and  falsehood  the  story  of  Captain  Lloyd  and  his  lieutenant  ? 
Contemporaneous  opinion  is  strong  evidence  as  to  ancient  facts. 
When  it  is  considered  that  this  opinion  came  from  our  opponent  in 
the  cause  under  arbitrament,  and  that  at  the  time  of  pronouncing 
it  Portugal  was  not  only  the  friend  and  the  ally,  but,  it  may  be 
said,  a  dependent  of  Great  Britain,  its  force  as  evidence  cannot  be 
too  highly  appreciated.  If  not  technically  conclusive,  who  will  say 
that  it  was  not  very  persuasive  ? 

Here  was  another  grievous  failure  in  the  duty  of  duly  presenting 
the  proofs  in  support  of  the  claim  on  Portugal. 

There  was  another,  and,  as  we  regard  it,  still  a  greater  failure. 
It  is  a  very  fair  presumption  that  Captain  Lloyd  conceived  the 
design  of  seizing  the  Armstrong  for  a  special  purpose.  To  facilitate 
aggressions  upon  our  coast  and  in  our  rivers,  small  vessels  were 
greatly  needed.  The  desire  to  supply  this  need  has  always  seemed 
the  most  probable  solution  of  Lloyd's  flagitiously  illegal  conduct. 
It  so  happens  that  one  document  included  in  the  Rio  Janeiro  cor- 
respondence, and  wholly  omitted  in  the  protocol,  distinctly  proves 
this  motive.  Immediately  after  the  principal  or  midnight  combat, 
William  Greaves,  the  British  Consul  at  Fayal,  addressed  to  the 
Portuguese  Governor  of  the  Azores  a  letter,  in  which  is  found  this 
statement  :  —  "  The  (British)  commander  will  send  a  brig  from  his 
squadron  to  fire  on  the  American  schooner  ;  and  if  the  said  brig 
should  encounter  any  hostilities  from  the  castle,  or  your  Excellency 
should  allow  the  masts  to  be  taken  from  that  schooner  (the  General 
Armstrong),  he  will  regard  this  island  as  an  enemy  of  his  Britannic 
Majesty,  and  will  treat  the  town  and  castle  accordingly." 

Lloyd  threatened  to  bombard  the  town  and  castle  of  a  friend  and 
ally  of  his  sovereign,  in  case  the  authorities  should  permit  the  Ameri- 
cans to  dismantle  or  destroy  their  own  vessel  so  as  to  unfit  her 
for  service.  Anxiety  to  save  an  enemy  from  suicide,  proves  some 
other  motive  than  revenge.  The  desire  to  reduce  him  to  captivity 
and  servitude  can  alone  account  for  it. 


132  BRIG  GEffEKAL 

* 

All  these  important  proofs  haying  been  suppressed,  it  cannot  be 
said  that  the  claimant's  case  was  fairly  tried  before  Louis  Napo-* 
Icon.  According  to  the  recordefl  admission  of  that  great  jurist 
and  statesman,  Daniel  Webster,  contained  in  his  official  letter  of  July 
12,  1851,  it  was  submitted  in  an  imperfect  and  improper  manner. 

The  failure  to  arrange  the  proofs  properly  so  called,  separately 
from  the  mere  arguments  contained  in  the  correspondence,  seems  to 
hare  misled  Louis  Napoleon,  as  to  the  nature  of  the  submission,  or 
to  have  furnished  him  with  a  pretence  for  assuming  a  power  which 
dur  government  could  not  have  intended  to  confer. 

The  whole  frame  of  his  award  implies  that  in  respect  to  the  facts, 
he  did  not  consider  himself  bound  by  the  documentary  proofs, 
annexed  to  the  protocol,  and  that  he  assumed  the  power  of  ascer- 
taining them  aliunde. 

For  this  purpose,  we  may  fairly  presume  that  he  rambled  whither- 
soever he  pleased — into  British  history  or  into  British  table-talk- 
He  recites  that  he  proceeded  to  judgment,  "  after  having  caused 
himself  to  be  correctly  and  circumstantially  informed  in  regard 
to  the  factt  which  have  been  the  cause  of  the  difference,  AND  after 
having  minutely  examined  the  documents,  duly  signed  in  the  namea 
of  the  two  parties,  which  have  been  submitted  to  our  inspection  by 
the  representatives  of  both  powers.'1 

These  words  certainly  imply  that  he  sought  proof  of  the  facts 
elsewhere,  and  afterwards  examined  the  protocol  with  its  attached 
documents,  as  an  additional  or  supplemental  act.  He  did  not 
obtain  what  he  calls  his  correct  and  circumstantial  information, 
«olely  and  exclusively  by  a  perusal  of  these  papers. 

Thus  it  appears  that  after  having  submitted  the  claim  to  an 
arbiter,  the  government  failed  in  its  first  duty  as  promovent.  It  not 
only  omitted  to  produce  the  evidence  in  its  power,  but  expressly 
withheld  it  at  the  instigation  of  the  adverse  party.  It  also  fur- 
nished the  partial  umpire  with  an  excuse  for  assuming  powers  not 
granted  to  him,  and  not  intended  to  be  conferred  upon  him. 

To  cap  the  climax  of  injustice  in  the  measures  by  which  this  claim 


SPEECH   OF   CHARLES   o'cONOE,  ESQ.  133 

was  sacrificed,  the  claimants  were  refused  a  hearing  before  the  arbi- 
ter, or  even  the  liberty  of  presenting  to  him  a  written  argument  in 
support  of  their  claim.  This  was  one  of  those  flagitious  violations 
of  justice,  against-  which  every  honest  mind  must  revolt.  To  reject 
without  a  hearing  may  be  well  enough,  or  between  a  despot  and 
bis  bond-slave  ;  it  is  not  within  the  capacity  of  a  judge.  Prece- 
dent, authority,  reason  and  sentiment  unite  in  condemning  it. 

The  Supreme  Court  of  Pennsylvania,  in  Falconer  Sf  Montgomery, 
4  Dallas'  Reports,  233,  says,  "  The  plainest  dictates  of  natural 
justice,  must  prescribe  to  every  tribunal,  the  law  that  'no  man 
shall  be  condemned  unheard.'  It  is  not  merely  an  abstract  rule  or 
positive  right ;  but  it  is  the  result  of  wise  experience,  and  of  a  wise 
attention  to  the  feelings  and  dispositions  of  human  nature.  An 
artless  narrative  of  facts,  a  natural  and  ardent  course  of  reasoning 
will  sometimes  have  a  wonderful  effect  upon  a  sound  and  generous 
mind  ;  an  effect  which  the  cold  and  minute  details  of  a  reporter 
can  neither  produce  nor  supplant.  Besides,  there  is  scarcely  a  piece 
of  written  evidence  or  a  sentence  of  oral  testimony,  that  is  not  sus- 
ceptible of  some  explanation,  or  exposed  to  some  contradiction.  To 
exclude  the  party,  therefore,  from  the  opportunity  of  interposing  in 
any  of  these  modes  (which  the  most  candid  and  the  most  intelligent 
of  disinterested  persons  may  easily  overlook),  is  not  only  a  privation 
of  his  right,  but  an  act  of  injustice  to  the  umpire,  whose  mind  might 
be  materially  influenced  by  such  interposition." 

The  case  Sharp  v,  Bickerdike,  3  Dow's  Parliamentary  Reports, 
102,  arose  upon  an  award  made  in  Scotland.  The  award  was  not 
impeached  for  any  other  fault  than  the  neglect  of  the  arbitrator,  to 
hear  the  parties,  under  a  mistaken  belief  that  he  had  consented 
to  waive  that  right.  The  positive  law  of  Scotland,  was,  that  no 
award  should  be  set  aside,  at  the  instance  of  either  party,  for  any 
cause  or  reason  whatever,  unless  it  was  for  bribery,  falsehood  or  cor- 
ruption in  the  arbitrator.  Lord  Eldon,  delivering  the  judg- 
ment of  the  House  of  Lords,  said,  that '  by  the  great  principle  of 
eternal  justice,  which  was  prior  to  all  these  acts,  &c.,  it  was  impos- 


134  BRIG   GENERAL   ARMSTRONG. 

Bible  that  the  award  could  stand.  He  added,  "  Even  if  he  had 
decidedly  rightly,  he  had  not  decidedly  justly."  In  these  cases, 
and  in  Elmendorf  v.  Harris,  decided  by  the  court  of  dernier  resort, 

4 

in  New  York,  23  Wendell,  633 — the  awards,  in  question,  were 
unanimously  set  aside  upon  this  principle.  Following  this  line  of 
precedent,  the  court  of  Queen's  Bench,  in  the  very  recent  case  of 
Oswald  v.  Grey,  29  Eng.  Law  &  Eq.  R.  88,  annulled  aa  award 
for  this  cause,  saying,  "A  more  glaring  departure  from  the  rules  that 
ought  to  regulate  the  proceedings  of  persons  sitting  in  the  charac-- 
ter  of  judges,  it  is  impossible  to  conceive." 

Another  and  a  conclusive  objection  to  this  award  appears. 

As  has  been  before  observed,  it  goes  upon  a  mere  question  of 
fact,  that  is  to  say,  the  question  whether  the  Americans  on  the 
occasion  in  question,  resorted  to  force  before  they  were  assailed,  or 
subjected  to  any  indignity  or  peril  ? 

It  never  could  have  beeu  the  intent  of  the  Executive  or  the 
Senate  in  framing  the  treaty  with  Portugal,  to  submit  that  question 
to  arbitrament.  A  total  insensibility  to  national  honor,  would 
have  been  manifested  in  adopting  such  a  course. 

The  correspondence  between  Portugal  and  the  United  States 
shows  that  the  former  denied  its  liability  on  legal  grounds.  It  was 
affirmed,  on  the  part  of  Portugal,  that  the  duty  of  a  state  to  afford 
protection  to  foreigners  within  its  territory  was  not  absolute ;  that  if 
such  state  employed  the  means  of  protection  in  its  power,  it  was  not 
responsible  for  the  inefficacy  of  such  means.  The  absurdity  of  this 
position,  as  applicable  to  the  case  in  hand,  has  been  already  shown, 
but  suffice  it  to  say,  in  this  connection,  that  Portugal  gravely  insisted 
on  it.  The  treaty  (Art.  2.)  recites,  as  the  cause  of  the  arbitrament, 
that  "  The  high  contracting  parties,  had  not  been  able  to  come  to 
an  agreement,  upon  the  question  of  public  law,  involved  in  the  case  of 
the  American  privateer,  General  Armstropg,  destroyed  by  British 
vessels,  in  the  waters  of  the  Island  of  Fayal,  in  September,  1814." 

This  recit  .1  proves  that  the  intent  was  to  refer  a  question  of  law 
only,  not  to  refer  a  question  of  fact .  Only  two  questions  of  law 


SPEECH  OF  CHAELES  O'OONOK,  ESQ.  135 

can  be  imagined  as  arising  in  the  case ;  first  this  silly  pretence  of 
immunity  from  the  duties  of  sovereignty,  on  the  ground  of  weakness, 
set  up  by  Portugal ;  and  secondly,  whether,  if  the  General  Arm- 
strong was  the  first  assailant,  she  had  thereby  forfeited  her  claim  to 
protection.  'The  latter  point,  as  we  have  shown,  was  well  settled 
in  the  affirmative  by  our  own  courts,  and  was  never  disputed  by  us; 
consequently,  it  is  plain,  that  but  one  question  of  law  was  in  dis- 
pute. This  question  it  might  have  been  the  part  of  wisdom  to  refer, 
for  no  third  power  could  ever  have  decided  it  against  us.  Louis 
Napoleon  himself  was  obliged  to  determine  it  in  our  favor. 

Did  the  Department  of  State,  when  preparing  the  protocol, 
intend  to  submit  the  question  of  fact  to  Louis  Napoleon?  We 
have  shown  that  the  treaty  gave  it  no  authority  so  to  do;  but  we 
ask  whether,  through  misapprehension  of  his  powers,  temporary 
inadvertence,  or  from  any  other  cause,  Daniel  Webster,  in  the 
exercise  of  his  high  functions  as  representative  of  the  honor  and 
interests  of  his  country,  did  really  intend  to  submit  to  the  arbitra- 
ment of  a  third  power  the  question  of  fact,  whether  the  British  or 
the  Americans  were  the  aggressors  in  the  memorable  combat  of 
September,  1814,  at  Payal?  We  cannot  believe  that  such  an 
intention  existed.  We  could  not  admit  it  without  abandoning  for 
ever  our  deep  and  unfeigned  admiration  of  that  illustrious  jurist 
and  statesman.  Such  an  act  would  have  been  the  extreme  of  folly. 
It  involved,  by  an  inevitable  necessity,  the  loss  of  the  claim,  and 
what  was  far  worse,  a  lasting  reproach  upon  our  country. 

In  that  midnight  conflict,  a  little  American  privateer  of  two  hun- 
dred and  forty  tons  burthen,  carrying  seven  guns  and  ninety  men, 
defeated  the  force  of  a  whole  British  fleet,  killing  of  her  assailants, 
according  to  the  English  historians  themselves,  within  one-sixth  as 
many  men  as  Britain  lost  in  the  great  naval  victory  off  Cape  St. 
Vincent. 

The  strength  of  this  comparison  will  be  best  exhibited  by  the 
facts.  In  that  action  there  were  fifty  ships  of  war  engaged,  and 
Britain's  immortal  Nelson  captured  the  Santissiraa  Trinidada  of  136 
guns,  and  three  other  three-deckers. 


136  BRIO   GENERAL  ARMSTRONG. 

Making  due  allowance  for  the  disparity  of  the  forces  engaged, 
looking  with  severely  exact  justice  to  precise  facts,  and  judging  by 
results,  there  is  not  a  transaction  in  the  whole  history  of  naval  war- 
fare which  reflects  such  signal  lustre  upon  the  gallantry  of  the 
actors  as  the  defense  of  the  General  Armstrong.  True,  the  heroes 
who  perished  in  the  fight  had  mouldered  into  dust,  and  no  monu- 
ment honored  their  resting-places.  Those  who  survived  it  had 
nearly  all  passed  from  earth,  and  the  very  few  yet  alive  were  near 
the  close  of  their  earthly  pilgrimage,  and  were  pining  in  want  and 
penury,  sad  memorials  of  that  neglect  which  is  proverbially  the 
recompense  of  public  benefactors.  But  the  glory  of  their  achieve- 
ments was  not  forgotten.  It  belonged  to  the  American  name :  it 
had  irradiated  our  naval  diadem  for  forty  years,  and  had  become  a 
matter  of  history.  Was  an  American  Senate  likely  to  forget  its 
duty  toward  these  recollections  ?  Was  Daniel  Webster  the  man  to 
deliver  over  this  bright  page  in  our  annals,  to  be  obliterated  by  the 
dictum  of  an  European  prince  ? 

Honor  cannot  attend  or  result  from  unlawful  violence.  Unable 
to  deny  the  physical  results,  Britain  had  sought  to  stigmatize  the 
conduct  of  Captain  Reid  as  an  unprovoked  aggression,  in  breach  of 
Portuguese  neutrality,  contrary  to  the  law  of  nations,  and  deserv- 
ing only  the  contempt  and  abhorrence  of  mankind.  Desperate  as 
may  seem  the  folly  of  imputing  to  this  little  cock-boat  aggressive- 
ness against  a  whole  fleet,  any  resort  was  preferable  to  a  confes 
sion  of  the  facts.  Accordingly  this  pitifully  absurd  tale  was  placed 
upon  the  records  of  the  British  admiralty,  and  thence  transferred  to 
the  annals  of  the  royal  navy.  Britain  had  sat  in  judgment  on  the 
fact,  in  her  national  capacity,  and  sanctioned  this  story  with  her 
high  approval.  On  the  other  hand,  the  government  of  the  United 
States,  in  all  its  departments,  and  under  several  successive  adminis- 
trations, had  testified  its  full  belief  in  the  statement  of  Captain 
Reid.  From  these  sources,  the  literature  of  the  respective  nations 
had  taken  opposing  opinions.  The  respective  historians  of  Britain 
and  of  the  United  States  stood  before  the  world  in  direct  conflict  as 
to  the  fact,  and  were,  of  course,  to  descend  to  future  times  as  rival 


SPEECH   OF   CHAELE8   o'cONOK,  ESQ.  137 

claimants  of  credibility  on  this  question.  Its  solution  involved  no 
matter  of  mere  pecuniary  interest,  territorial  aggrandizement  or 
other  worldly  profit  of  any  kind  ;  it  was  a  question  of  national 
honor  or  shame. 

Did  any  nation  ever  submit  such  a  question  to  the  arbitrament 
of  an  umpire  ?  To  admit  it  to  be  a  question  for  trial  was  to 
embrace  infamy  ?  As  well  might  a  high-toned  gentleman  charged 
with  some  scandalous  act  by  a  known  and  avowed  enemy,  refer  the 
slander  to  a  mutual  friend,  with  authority  to  decide,  upon  proofs, 
whether  or  not  he  was  a  scoundrel.  Honor  decides  such  questions 
for  itself,  reposes  on  its  own  known  rectitude  for  a  protection,  or 
vindicates  itself  by  more  active  means.  It  never  reposes  in  a  trus- 
tee, an  agent,  or  an  umpire,  the  power  of  consigning  it  to  infamy. 

One  of  our  reasons  for  denying  that  Mr.  Webster  could  ever  have 
intended  to  refer  to  Louis  Napoleon  the  question  of  fact  whether 
the  Armstrong  was  the  aggressor,  is  that  the  result  must  neces- 
sarily have  been  against  his  country  and  his  fellow-citizens. 

It  is  a  principle  of  universal  law,  that  the  affirmative  must  be 
proven  by  a  preponderance  of  evidence.  Equal  colliding  forces  pro- 
duce a  state  of  rest,  as  equal  weights  in  the  scales  produce  an 
equipoise.  It  follows  that  whenever  the  opposing  proofs  as  to  a 
disputed  fact  are  equal,  the  party  who  asserts  the  fact  must  fail. 
This,  however  true  in  theory,  is  rarely,  if  ever,  applied  in  practice. 
Some  circumstance  affecting  the  credit  of  a  witness  or  of  a 
document  produced  on  the  one  side  or  the  other,  almost  always 
turns  the  scale;  and  the  verdict  or  decision  goes,  accordingly,  upon 
the  theory  of  full  credence  being  given  to  one  side,  and  denied  to 
the  other.  Thus,  a  judicial  forum  decides  between  parties,  and 
resolves  the  doubtful  point  upon  a  nice  scrutiny  of  the  proofs,  res- 
ponding according  to  its  view  of  the  right,  notwithstanding  that  its 
decree  may  possibly  wound  the  honor  of  one  party  and  his  wit- 
nesses, by  impliedly  imputing  to  them  intentional  misrepresentation. 

Now  it  so  happens,  as  any  one  can  in  a  moment  see,  that  if  the 
question  of  fact  as  to  who  was  the  first  aggressor  was  to  be  submit- 


138  BKIG  GENERAL  ARMSTRONG. 

ted  in  this  case,  the  United  States  would  hold  the  affirmative,  and 
the  witnesses  would  be  in  direct  conflict.  Consequently  a  judg- 
ment could  not  be  formed  in  our  favor  without  thus  implicating  the 
witnessess  of  our  adversary;  whilst,  on  the  other  hand,  the  arbiter 
could  decide  against  us  upon  the  mere  philosophical  principle  that  a 
perfect  balance  being  produced,  it  did  not  become  him,  as  a  friend 
and  ally  of  each,  to  disbelieve  either. 

The  treaty  provided  that  the  submission  should  be  made  "  to  a 
sovereign  potentate  or  chief  of  some  nation  in  amity  with  both  the 
high  contracting  parties."  It  was  well  known  that  the  true  party 
for  whom  Portugal  appeared  in  the  case  was  Great  Britain. 
Whatever  Portugal  might  be  compelled  to  pay  to  us,  Great 
Britain  would  of  course,  be  held  to  reimburse.  But,  besides  all 
this — and  hence  this  bitter,  long-continued,  unyielding  opposition 
to  this  claim  by  Portugal,  her  ally — the  honor  of  Great  Britain 
was  deeply  involved  in  the  issue.  Great  Britain,  for  a  wonder,  was 
then  "  in  amity  "  with  the  whole  civilized  world.  She  was  on  terms 
of  the  closest  amity  with  both  the  chrysalis  royalty  of  France,  and 
with  Oscar  of  Sweden,  the  only  potentates  contemplated  by  the 
protocol  of  submission.  The  witnesses  on  our  side  were  private 
citizens.  They  had  not  even  an  official  recognition  to  connect  them 
with  our  government,  in  the  technical  consideration  of  an  European 
sovereign,  so  that  discrediting  them  might  be  deemed  a  direct 
offence  to  the  nation.  On  the  other  hand,  the  opposing  witnesses 
were  public  officers,  servants,  and  agents  of  Great  Britain.  With- 
out taking  into  view,  as  additional  reasons,  or  make-weights, 
toward  the  same  conclusion,  the  intimate  relations  for  mutual 
support  and  protection  which  exist  between  the  sovereigns  of 
Europe,  is  it  not  manifest  to  the  most  simple-minded  observer, 
that  no  one  of  them,  consistently  with  a  prudent  regard  for  his  own 
high  interests,  could  ever  assume  the  office  of  arbiter  upon  a  matter 
of  fact  between  two  independent  sovereign  powers,  and  pronounce 
a  decree  stigmatizing  the  public  agents  of  either  as  perjured  ? 

It  was   never  denied  that  Captain  Reid  fired  the  first  gun. 


SPEECH   OF   CHAELEB   o'cONOE,  ESQ.  139 

Prima  facie  then,  he  was  the  agressor.  To  justify  this,  and  fix 
upon  the  British  forces  the  inception  of  hostilities,  it  was  necessary 
to  prove  affirmatively  the  menacing  approach  of  an  armed  enemy. 
This  was  an  affirmative  of  the  class  which  it  is  most  difficult  to 
establish  by  proof.  Captain  Reid  and  his  men  could  do  no  more 
than  swear  to  it,  as  they  did,  and  by  way  of  confirmation,  affirm 
the  distinct  fact,  that  the  fire  was  returned  from  the  British  boats. 
But  the  defeated  commandant  of  the  assailing  force  could  easily 
deny  this,  and  he  had  denied  it.  Nor  was  this  a  case  in  which, 
from  the  nature  of  the  thing,  affirmative  testimony  has  a  superiority 
over  negative.  There  was  no  room  for  mistake  or  oversight  on  the 
British  side.  Lieutenant  Fausset  knew  whether  his  men  were 
armed  or  not ;  and  he  swore  they  had  no  arms.  Of  course,  if  they 
had  no  arms  they  could  not  have  returned  the  American  fire. 
In  addition  to  the  rule  that  the  affirmative  must  be  proved  by 
a  preponderance  of  testimony,  there  was  a  principle  in  close  affinity 
to  it,  which  any  one  could  see  led  inevitably  to  our  defeat  in  the 
umpirage.  As  to  the  hostile  intent  of  the  approaching  British 
flotilla,  Captain  Reid  could  only  act  upon  circumstances  affording 
a  presumption  of  such  intent. 

Had  he  abstained  from  firing  any  longer  than  he  did,  it  is 
probable  that  his  deck  would  have  been  covered  with  an  over- 
whelming armed  force  before  a  blow  was  struck.  Perhaps  no 
wound  would  ever  have  been  given  on  either  side.  Perhaps  every 
privateersman  would  have  been  suddenly  seized  and  pinioned  by 
superior  numbers,  and  the  gallant  little  Armstrong,  instead  of 
perishing  gloriously  amid  her  vanquished  enemies,  might  have  been 
employed  to  carry  rapine  and  desolation  to  our  defenceless  homes 
and  firesides.  As  it  was  always  admitted  that  in  the  first  combat 
Captain  Reid  repelled  the  assailing  force  whilst  it  yet  held  no  more 
commanding  position  than  that  of  menace,  proof  of  an  aggressive 
intent  by  those  in  the  British  boats  was  indispensable  to  our  success; 
and  the  proof  on  that  head  could  only  be  circumstantial.  On  the 
other  hand,  Lieutenant  Fausset  could  swear  positively  that  no  such 


14:0  BRIO   GENERAL   ARMSTRONG. 

intention  existed.  He  could  say  Captain  Reid  was  mistaken,  and 
thus,  in  the  most  polite  style  imaginable,  entitle  himself  to  the 
Imperial  award. 

How  hopelessly  desperate,  then,  was  the  case — treated  as  a 
question  of  fact — considering  who  was  the  arbiter  and  the  conse- 
quences to  result  from  the  decision. 

In  this  connection,  we  do  not  question  the  equal  fitness  of  Louis 
Napoleon  as  an  arbiter  with  any  other  European  potentate.  It 
was  not  to  be  expected  that  any  sovereign  of  Europe  would 
convict  the  British  officers  of  perjury.  He  could  not  otherwise 
conform  to  the  known  policy  of  his  class,  than  by  finding,  as  he 
did,  that  the  fact  was  not  proved.  Consequently  it  would  have 
been  a  gross  error  to  submit  a  fact  of  this  kind  to  th§  deter- 
mination of  snch  an  arbiter.  He  could  not  afford  to  act  judi- 
cially, to  scrutinize  the  evidence  fairly,  or  to  determine  the  fact 
justly.  It  would  have  been  not  only  a  grievous  error  in  national 
policy,  but  a  palpable  failure  in  duty  to  the  country,  and  to  the 
claimants.  No  American  who  regards  the  honor  of  his  country, 
will  ever  admit  that  the  Senate  of  the  United  States  intended  to 
submit  to  any  earthly  arbitrament  the  question  of  national  honor 
which  Louis  Napoleon  has  assumed  to  decide.  No  friend  or  honest 
admirer  of  Daniel  Webster  will  ever  admit  that  he  could  so  far 
mistake  the  import  of  the  treaty,  as  to  suppose  that  he  had  power  to 
submit  it,  or  that  he  could  be  so  blind  to  the  dictates  of  reason  and 
common  sense,  or  so  ignorant  of  the  motives  of  state  policy  which 
govern  European  potentates,  as  not  to  see  that  such  submission  was 
equivalent  to  what  lawyers  call  a  retraxit.  He  never  could  have 
intended  thus  to  sacrifice  at  a  blow  the  private  interests  committed 
to  his  charge,  and  the  national  honor  he  so  deeply  cherished. 

If  we  are  right  in  this,  it  will  be  seen  that  Louis  Napoleon's 
assumed  jurisdiction  over  the  fact  was  an  usurpation  of  power  not 
granted.  Upon  this  ground  alone,  his  award  was  wholly  void  in 
every  legal  and  moral  sense,  and  should  have  been  rejected  by  our 
government  immediately  after  its  publication. 


SPEECH  OF  CHARLES  o'cOflOE,  ESQ.  141 

The  tendency  to  usurpation  was  pretty  strong  in  the  mind  of  the 
arbiter  at  the  time,  as  may  be  perceived  by  reference  to  contem- 
poraneous events.  But  in  reference  to  this  case,  he  not  only 
assumed  powers  not  granted,  but  undertook  to  overrule,  and 
negative  the  very  facts  agreed  upon  by  the  high  contracting  parties, 
and  which,  of  course,  he  was  expressly  forbidden  to  adjudge. 

In  the  Second  article  of  the  treaty,  it  is  stated  in  so  many  words, 
that  the  General  Armstrong  was  "  destroyed  by  British  vessels  in 
the  waters  of  the  island  of  Fayal."  (Article  2.)  Yet,  the  award, 
in  reciting  this  part  of  the  submission,  studiously  omits  the  words 
"by  British  vessels ;" and,  in  its  finding  upon  the  facts,  it  states,  that 
the  act  of  destruction  was  by  Captain  Reid  in  consequence  of  the 
hostile  demonstration  made.  Even  if  it  was  within  his  judicial 
province  to  set  aside  a  fact  agreed  by  the  parties,  he  could  not 
justify  this  finding.  The  proofs  are  clear  that  Captain  Reid  merely 
fired  a  shot  through  the  vessel's  bottom,  in  order  to  sink  her  in  the 
harbor,  thus  placing  her  for  the  time  beyond  the  enemy's  reach,  and 
reserving  the  chance  of  raising  her  at  a  future  period.  But  the 
British,  being  thus  baulked  in  their  original  design,  set  fire  to  her, 
and  thereby  effected  her  complete  destruction. 

Thus,  it  will  be  seen,  that  independently  of  the  deeper  moral 
objections  to  it,  Louis  Napoleon's  award  was  not  entitled  to  any 
respect  whatever,  and  was  wholly  void,  because  he  based  it  upon 
a  question  of  fact  not  submitted  to  him.  It  may  be  well,  therefore, 
to  state  here  the  legal  grounds  on  which  we  insist  that  its  accep* 
tance  wrought  an  extinguishment  of  our  claim  against  Portugal, 
and  gave  rise  to  a  claim  in  its  place  against  the  Treasury  of  the 
United  States.  We  had,  originally,  a  just  claim  for  indemnity 
upon  Portugal,  which,  under  the  circumstances,  it  was  the  impera- 
tive duty  of  our  government  to  enforce  ;  and  which,  as  against  us, 
the  government  had  no  right  to  surrender  or  annul.  The  power  of 
prosecuting  that  claim  was  vested  in  the  government  alone,  and 
consequently,  the  award  of  Louis  Napoleon  thereon — whether  just 
and  lawful  or  not— on  being  accepted  by  the  Department  to  which 


14:2  BRIG  GENERAL  ARMSTRONG* 

is  intrusted  our  Foreign  Affairs,  worked  a  complete  extinguishment 
of  the  claim  as  against  Portugal.  (See  Secretary  Marey's  letter, 
dated  Dec.  10th,  1854.)  That  acceptance  deprived  us  of  all 
recourse  except  upon  the  public  treasury.  We  claim  that  the 
award  of  Louis  Napoleon  was  partial  and  unjust  ;  we  have  shown 
that  it  was  void,  for  want  of  jurisdiction,  because  not  warranted 
by  the  submission,  and  that  it  was  void  as  against  us,  because 
important  evidence  was  withheld  from  him,  and  because  the  right 
to  be  heard  ia  support  of  our  claim  before  himself  or  his  council, 
was  denied  to  us. 

The  withholding  of  evidence,  the  denial  of  a  hearing,  and  the 
unwarrantable  acceptance  of  the  award,  are  relied  upon  as  involv- 
ing a  liability  of  the  government  because  they  are  not  acts  of  a 
subordinate  official,  who  might  be  personally  responsible  at  law  to 
the  citizen  for  the  injury  produced  by  his  malversation,  but  are  acts 
of  State,  performed  by  the  supreme  executive  in  the  exercise  of  a 
high  discretionary  authority  which  no  court  could  control 
or  correct,  at  the  suit  of  an  individual.  Hence  the  liability  of  the 
nation. 

An  opinion  of  Mr.  Attorney-General  Gushing  has  been  cited, 
showing  that  the  government  is  not  responsible  for  the  acts  of 
marshals,  collectors,  pilots,  and  other  subordinate  officers  who  are 
appointed  to  facilitate  the  business  operations  of  the  citizen.  We 
acquiesce  unhesitatingly  in  this  opinion.  But  it  has  no  application 
to  the  President,  the  heads  of  departments,  or  other  high  public 
functionaries,  who  are  themselves  the  government.  These  officers 
are  intrusted  with  the  power  of  representing  the  nation  and  acting 
for  it.  They  cannot  be  arraigned  in  a  court  of  law,  or  elsewhere 
made  responsible  to  the  private  citizen  who  may  be  injured  by  acts 
of  state,  performed  through  their  agency?  For  these  the  nation 
itself  must  answer,  in  its  collective  and  sovereign  capacity.  Indeed 
the  Departments  constantly  recognize  this  rule.  Collectors  of  the 
customs  are  in  the  daily  habit  of  seizing  goods,  and  performing 
other  acts  of  direct  interference  with  the  property  of  individuals  in 


SPEECH  OF  CHARLES  o'cONOR)  ESQ.  143 

conformity  with  instructions  from  the  Treasury  founded  upon  a 
construction  of  the  law  which  is  subsequently  condemned  by  the 
courts  as  erroneous  ;  and,  as  a  necessary  result,  they  are  frequently 
made  liable  for  damages  and  expenses.  On  all  such  occasions, 
it  is  the  established  practice  to  indemnify  the  subordinate  out  of 
the  public  treasury.  Though  selected  with  especial  reference  to 
their  fitness  for  high  station,  the  heads  of  departments  are  mortal, 
and  must  sometimes  err  through  haste,  inadvertence  or  miscon- 
ception. When  such  errors  occur,  there  being  no  other  remedy,  it 
is  altogether  just  that  the  government  should  make  the  reparation. 
Though  the  act  directed  to  be  done  is  unlawful,  though  the 
direction  itself  is,  of  course,  a  violation  of  law,  still  it  is  impossible 
to  conduct  public  affairs,  at  all  times,  with  absolute  accuracy,  and 
there  must  be,  somewhere,  a  discretionary  power,  to  act  for  the 
public  upon  emergencies,  and  in  doubtful  cases.  When  that 
discretion  is  rightly  exercised,  the  nation  takes  the  benefit ;  when 
erroneously  exercised,  it  should  sustain  the  resulting  loss. 

These  same  principles  apply  here.  Our  claim  is  against  the 
public  treasury  because  the  injury  complained  of  resulted  from 
acts  of  the  government  itself,  performed  through  its  highest  function- 
aries, in  the  exercise  of  an  irresponsible  discretion.  The  maxim 
respondeat  superior,  is  eminently  applicable  to  such  cases.  For  acts 
of  state,  the  State  itself  must  answer.  The  government  of  the 
United  States  did  not  protest  against  the  award  of  Louis  Napo- 
leon, but,  on  the  contrary,  expressly  declared  its  acquiescence 
through  the  department  of  State,  and  thus  released  Portugal  from 
all  further  responsibility.  Had  the  award  been  rejected,  we  should 
now  stand  in  the  same  attitude  which  we  had  occupied  for  forty 
years.  We  would  still  hold  a  valid  and  subsisting  claim  against 
Portugal,  neither  abandoned  nor  released  by  our  government, 
and  still  in  due  course  of  prosecution  by  the  proper  authority. 
Although,  in  such  a  condition  of  things,  we  might  well  murmur  at 
the  delay,  perhaps  mere  delay,  even  amounting  to  neglect,  would 
not  entitle  us  to  maintain  here  or  elsewhere,  a  pecuniary  demand 
against  the  United  States. 


144  BRIG  GENERAL  ARMSTRONG. 

The  right  to  reject  the  award  of  a  mutual  friend  has  been  exer- 
cised by  our  government,  and  is  fully  recognized  in  the  law  of 
nations.  Yattel  says,  that  where  there  is  flagrant  partiality,  or 
where  the  arbitrator  exceeds  his  power  by  determining  a  matter 
not  submitted  to  him,  it  will  not  bind.  "  If  by  a  sentence  mani- 
festly unjust,  and  contrary  to  reason,  the  arbitrator  has  stripped 
himself  of  his  quality,  his  judgment  deserves  no  attention." — Book 
11,  ch.  18,  §  2391 — In  the  same  section,  that  writer  illustrates  his 
views  by  very  opposite  instances.  He  says,  "  in  case  of  a  vague 
and  unlimited  submission  in  which  the  parties  have  neither  precisely 
determined  what  constitutes  the  subject  of  the  quarrel,  nor 
marked  out  the  limits  of  their  opposite  pretensions,  it  may  often 
happen  that  the  arbitrator  may  exceed  his  power  and  pass  judg- 
ment on  what  has  not  really  been  submitted  for  his  decision."  In 
this  case  the  submission  was  framed  without  the  requisite  precision 
as  to  the  point  submitted,  or  Louis  Napoleon,  without  that 
apology,  transcended  the  authority  granted.  In  either  case,  the 
award  should  have  been  rejected. 

We  will  now  consider  the  evidence  with  a  view  to  the  question, 
whether  Captain  Reid  was  the  aggressor. 

James'  Naval  History  of  Great  Britain,  vol.  6,  p.  349;  states 
that  "  Captain  Lloyd  sent  Lieutenant  Robert  Faussett,  in  the  Plan- 
tagenet's  pinnace,  into  the  port,  to  ascertain  the  force  of  the  schoo- 
ner (the  Armstrong,)  and  to  what  nation  she  belonged.  Owing 
to  the  strength  of  the  tide,  and  the  circumstance  of  the  schooner 
getting  under  weigh,  and  dropping  fast  astern,  the  boat  drifted 
nearer  to  her  than  had  been  intended.  The  American  privateer 
hailed  and  desired  the  boat  to  keep  off,  but  this  was  impracticable, 
owing  to  the  quantity  of  stern-way  on  the  schooner.  The 
General  Armstrong,  then  opened  her  fire,  before  the  boat  could  get 
out  of  gun-shot,  killed  two  and  wounded  seven  of  her  men.  As 
the  captain  of  the  American  privateer  had  now  broken  the  neu- 
trality, Captain  Lloyd  determined  to  send  in  and  cut  out  his 
schooner,  &c." 

This  though  not  rightfully  before  Louis  Napoleon,  if  before  him 


SPEECH   OF   CHARLES   o'cONOK,  ESQ.  145 

at  all,  may  be  regarded  as  the  British  version.  The  historical  con- 
flict between  us  and  that  nation,  may  be  seen  by  reference  to  Inger- 
soll's  history  of  the  second  war — vol.  1,  pp.  44,  45. 

The  proof  before  Louis  Napoleon,  and  now  before  the  court,  is 
found  in  the  affidavit  of  Faussett,  on  the  British  side,  and  that  of 
Captain  Reid,  and  his  officers,  on  the  American  side. 

Lieutenant  Faussett's  affidavit  tells  substantially  the  same  story 
as  that  contained  in  James'  work.  He  says  he  went  to  inquire 
"what  armed  vessel"  it  was.  He  swears  that  his  men  were  with- 
out arms,  and  that  he  was  in  the  act  of  backing  his  boat  astern 
with  a  boat-hook,  when  he  was  fired  into. 

Captain  Reid  in  his  protest,  verified  by  himself  and  nine  of 
his  officers,  at  Fayal,  September  27,  1814,  swears  that  the  first 
approach  to  his  vessel  was  made  by  "four  boats  filled  with  armed 
men,  that  he  repeatedly  hailed  them  and  warned  them  to  keep  off, 
which  they  disregarding,  he  ordered  his  men  to  fire  on  them,  which 
was  done,  killing  and  wounding  several  men."  He  further  says, 
"The  boats  returned  the  fire,  killing  one  man  and  wounding  the 
first  lieutenant.  They  then  fled  to  their  ships  and  prepared  for  a 
second  and  more  formidable  attack." 

This  is  the  direct  evidence  of  the  immediate  actors  in  the 
drama. 

The  absurdity  of  the  English  story  is  very  striking.  In  the 
first  place  where  was  the  necessity — what  was  the  right  of  the 
British,  then  in  a  state  of  war,  to  approach  an  armed  cruiser  in  a 
neutral  port,  for  the  purpose  of  a  search  as  to  her  nation  or  her 
force  ?  If  necessary,  could  not  the  first  of  these  particulars  have 
been  ascertained  with  great  ease  from  any  officer  of  the  port  ?  No 
man  will  contend  for  the  right  to  make  the  latter  search,  and  though 
stated  in  James'  Naval  History,  the  court  will  perceive  that  the 
vague  terms  employed  in  Faussett's  affidavit,  leave  it  doubtful  whe- 
ther he  intends  to  avow  any  such  design. 

The  testimony  of  Captain  Reid  and  his  gallant  associates,  con- 
flicts with  Faussett's  in  every  point.  First,  they  say  the  approach 

11 


146  BRIG    GENEEAL   ARMSTRONG. 

was  made  with  four  boats  instead  of  one.  In  the  next  place,  they 
contradict  most  explicitly  the-  pretence  that  the  British  were 
unarmed,  by  proving  a  return  fire — effecting  the  death  of  one 
man,  and  wounding  their  first  lieutenant.  About  this  latter  fact, 
there  could  be  no  mistake,  and  here  the  collision  of  testimony  is  so 
express,  that  no  decision  could  possibly  be  made  against  the  Ameri- 
can party,  except  by  convicting  them  of  willful  and  deliberate  per- 
jury, or  applying  the  cold  philosophy  to  which  we  have  before 
adverted,  that  is  to  say,  deeming  a  fact  not  proven  whenever  the 
affirming  and  denying  witnesses  have  equal  means  of  knowledge. 
And,  indeed,  it  will  be  observed  that  Louis  Napoleon  must  have  gone 
upon  this  latter  doctrine  ;  for  his  finding  in  the  award,  is  simply 
this — "  it  is  not  certain  that  the  men  who  manned  the  boats  afore- 
said, were  provided  with  arms  and  ammunition." 

Many  circumstances  tend  to  discredit  this  English  story.  Not 
only  the  ministry  of  Portugal,  but  all  Fayal  at  the  time,  pro- 
nounced the  English  the  assailants.  The  affidavit  of  Faussett  did 
not  see  the  light  for  many  years  subsequently  to  the  occurrence.  In 
this  encounter,  the  Armstrong  lost  one  killed  and  one  wounded, 
whilst  in  her  final  conflict  with  twelve  or  fourteen  boats  full  of 
armed  men,  in  which  such  terrible  havoc  occurred  amongst  the  enemy, 
she  lost  only  one  additional  man  killed,  and  six  more  wounded. 

Faussett  was  obliged,  of  course,  to  deny  that  he  approached  the 
first  time  with  more  than  one  boat.  Four  boat  loads  of  men  would 
be  rather  a  large  body  to  detail  on  such  a  service  as  merely  to  ask 
a  question;  nor  was  it  probable  that  a  British  fleet  would  send  out 
so  large  a  body  of  men  without  any  arms  whatever,  to  overhaul  an 
unknown  armed  vessel.  He  was  conscious,  also,  that  the  General 
Armstrong  had  been  fired  into  with  results  destructive  and  fatal. 
This  was  witnessed  by  thousands,  and  could  not  be  denied;  but 
perverse  ingenuity  could  invent  a  fable  to  account  for  it :  so  he 
appended  to  his  narrative  the  apparently  irrelevant  circumstance 
that  "Several  Portuguese  boats,  at  the  time  of  said  unprecedented 
attack,  were  going  ashore,  which,  it  seems,  were  said  to  be  armed." 


SPEECH    OF   CHARLES   o'cONOK,  ESQ. 

To  be  sure,  nothing  could  be  less  plausible  than  the  conjecture — 
rather  hinted  at  than  hazarded — that  these  Portuguese  boatmen 
fired  into  the  Armstrong.  With  that  halting  indirection  which 
marks  his  whole  narrative,  Faussett  merely  gives  this  on  dit,  with- 
out venturing  to  assert,  even  upon  report  or  hearsay,  that  there  was 
any  firing  by  the  Portuguese.  He  left  it  to  the  venal  apologist 
and  the  partial  umpire  to  deem  it  "not  certain"  whether  the  fire 
came  from  the  British  or  the  Portuguese. 

Surely  it  is  not  necessary  to  dwell  further  upon  this  comparison. 
Paussett  is  manifestly  unworthy  of  credit,  and  it  appears  by  the 
award  itself,  that  Louis  Napoleon  did  not  believe  him.' 

The  primary  fact  in  dispute  was  this  :  Did  Faussett  approach 
the  Armstrong  peacefully  and  unarmed,  in  a  single  small  boat,  to 
ask  a  question,  or  did  he  approach  with  several  large  boats,  thereby 
displaying  and  employing  such  a  force  as  to  justify  apprehensions  of 
a  hostile  attack  ?  Louis  Napoleon  concedes  it  to  be  "  dear,"  that 
this  first  approach  to  the  General  Armstrong  was  by  "some  Eng- 
lish long  boats,  commanded  by  Lieutenant  Robert  Faussett  of  the 
British  Navy."  Disbelieving  him  as  to  the  main  and  primary  fact, 
what  honest  court,  sitting  to  determine  this  case  between  man  and 
man,  could  have  found,  upon  his  evidence,  that  his  crews  were  not 
armed,  in  opposition  to  the  imimpeachcd  oath  of  Captain  Reid  and 
his  officers,  confirmed  by  the  voice  of  all  indifferent  spectators  ? 
The  whole  story  is  a  palpable  falsehood.  The  case  is  eminently  one 
for  the  application  of  the  rule  falsus  in  uno  falsus  in  omnibus.  Any 
impartial  and  competent  arbitrator  would  have  applied  it. 

Nothing  but  Louis  Napoleon's  total  incapacity  to  sit  in  judgment 
•on  the  case,  in  consequence  of  his  political  relations  with  Great 
Britain — the  party  most  deeply  implicated  ia  the  transaction — can 
account  for  the  award. 

Upon  reason  and  authority,  the  claim  against  Portugal  appears 
to  have  been  well  founded  in  fact,  and  valid  in  law.  We  had,  by 
the  law  of  nations  and  the  principles  of  justice,  an  absolute  right  to 
full  indemnity  from  that  country.  It  has  been  sacrificed,  and  the 
remaining  question  is  this  :  Are  we  remediless  ? 


148  BBIG  GENERAL  ARMSTRONG. 

Whilst  we  deny  the  authority  or  force  of  this  award,  and  qaes- 
tion  the  whole  course  of  the  government  in  respect  to  the  reference, 
we  wish  to  be  understood  as  standing  not  in  the  least  behind  the 
learned  solicitor  in  our  admiration  for  the  character  of  Daniel 
Webster.  That  great  man  had  been  just  called  into  the  State 
Department,  upon  the  sudden  and  wholly  unexpected  advent  of  a  new 
administration.  General  Taylor's  warlike  spirit,  as  it  was  sup- 
posed, bad  brought  the  country  to  the  verge  of  a  war  with  Portu- 
gal. The  civilian  who  succeeded  him  preferred  peace,  and  of 
course  his  judgment  controlled.  Acting  in  harmony  with  the 
policy  of  the  new  executive,  and  perhaps  without  having  given  to 
the  subject  that  careful  examination  which  it  required,  Mr.  Webster 
assented  to  the  reference  for  the  sake  of  peace.  In  this  way,  the 
rights  of  the  claimants  were  sacrificed  for  what  was  deemed  the 
public  weal. 

But  it  is  contended  that  the  United  States,  in  prosecuting  these 
claims  against  foreign  powers,  acts  only  as  agent  for  the  individuals 
aggrieved,  and  that,  as  principals,  we  have  ratified  the  act  of  sub- 
mission to  Louis  Napoleon. 

We  have  already  denied,  in  toto,  the  applicability  of  this  doc- 
trine. There  can  be  no  implied  ratification,  because  the  case  is  not 
one  of  principal  and  agent.  The  nation  has  the  whole  power  :  it  is 
the  principal,  not  the  agent.  In  defending  the  rights  of  the  citizen, 
it  is  no  more  an  agent  than  a  father  is  in  avenging  an  insult  offered  to 
his  child.  It  acts  in  vindication  of  its  own  honor  and  sovereignty. 
But  we  need  not  have  denied  the  doetrine,  for  there  is  no  evidence 
of  ratification. 

On  the  first  rumor  that  an  arbitrament  was  in  contemplation,  Mr. 
gam.  C.  Keid,  Junior,  the  counsel  for  the  claimants,  addressed  to  the 
Secretary  of  State  a  letter  inquiring  of  its  truth,  and  praying  to  be 
heard  on  the  subject  before  any  such  action  should  be  had.  The  gal- 
lant old  sailor  himself  who  had  never  known  fear  of  personal  danger, 
shrank  with  a  wisely  instinctive  horror  from  the  bare  thought  of 
submitting  his  own  and  his  country's  honor  to  the  arbitrament  of  an 
European  despot.  The  keenness  with  which  he  felt  upon  this  sub- 


[SPEECH   OF  CHABLE8   ©'CONOR,  ESQ.  149 

ject  is  but  thinly  veiled  by  the  modest  courtesy  of  his  respectful 
remonstrance.     Let  it  be  read  :  it  deserves  a  place  in  the  annals  of 
his  country.      Let   the   personal   characteristics   of  the   hero,   as 
exhibited  in  peaceful  action,  adorn  the  same  page  which  bears  to 
future  times  his  illustrious  deeds.     They  will  alike  challenge  admi- 
ration   and  reflect  honor  upon  all  who  may  be  so  happy  as  to 
S     imitate. 
Nxw  YORK,  August  26,  1860. 
HON.  DANISL  WEBSTER, 

SIR: — By  the  recent  daily  journals,  rumors  are  rife  that  the  claims  of 
the  General  Armstrong,  are  about  to  be  referred  to  some  power  for  arbitra- 
tion. This  mode  at  best  being  considered  somewhat  problematical,  we,  the 
claimants,  would  respectfully  suggest,  whether  or  not  a  settlement  by  treaty  or 
^  convention  may  not  in  your  opinion  be  preferable,  as  being  most  likely  to 
enable  us  to  obtain  our  demands  without  the  risk  of  a  failure  ? 

Feeling  as  we  do,  that  we  are  in  very  safe  and  very  able  hands,  we  have 
no  great  fears  for  the  future,  if  we  be  allowed  to  compare  what  you  have 
already  done  for  us,  with  what  is  to  be  expected  on  future  occasions. 

After  so  much  negotiation,  controversy,  and  anxiety,  for  a  long  scrie* 
of  years,  we  now  look  to  you,  sir,  with  every  confidence  for  a  final  and  favor- 
able termination  of  this  affair.  And  should  you  be  pleased  to  honor  us  with 
your  views,  we  shall  esteem  ourselves  under  additional  obligations. 

With  great  respect,  &c. 

S.  C.  RKID, 
Late  Commander  of  the  G.  A. 

In  behalf  of  the  Claimants. 


Before  either  of  these  letters  reached  the  department  of  State, 
the  negotiations  had  been  brought  to  a  close,  and  consequently  our 
government  could  not  recede.  This  had  been  done  without  notice  to 
the  claimants,  without  either  knowledge  or  assent  on  their  part, 
and  was  contrary  to  their  wishes. 

As  it  was  too  late  to  prevent  the  arbitrament,  the  claimants  did 
all  that  remained  in  their  power.  They  solicited  permission,  first 
that  young  Mr.  Reid,  their  counsel,  might  proceed  to  Prance, 
with  competent  authority  to  obtain  a  due  advocacy  of  the  case. 


150  BRIO    GENERAL    AKMSTKONG. 

This  was  not  granted.  They  next  had  prepared  a  written  argu- 
ment, and  prayed  that  it  might  be  laid  before  the  arbiter.  This 
request  was  also  denied.  *  It  seems  to  have  been  understood  that  it 
was  beneath  the  dignity  of  a  monarch,  to  hear  the  party.  As  an 
act  of  State,  this  refusal  may  have  beeen  according  to  established 
forms,  but,  if  it  was,  how  manifest  becomes  our  position  that  the  case 
never  should  have  been  referred.  Royal  grants  usually  run  Ex 
cerla  scientia  et  mero  motu.  This  royal  arbitrament  seems  to  have 
been  in  like  manner  understood  by  all  parties,  except  the  unsub- 
mitting  claimants,  as  an  appeal  to  absolute,  irresponsible  monarchical 
volition  ! 

These  rejected  solicitations  for  common  justice,  and  these  dis- 
regarded remonstrances,  constitute  the  whole  evidence  relied  upon 
to  prove  a  ratification.  If  they  have  that  effect,  we  ask,  in  the 
name  of  conscience  and  reason,  what  could  the  claimants  have  done 
in  the  premises  which  would  not  have  been  a  ratification  ?  Was  it 
necessary  to  levy  war  against  the  government  ?  Was  it  necessary 
to  appear  at  the  State  Department  and  rail  at  the  secretary, 
like  a  common  scold  ?  Ought  we  to  have  hired  penny-a-liners, 
and  filled  the  journals  of  the  day  with  invective  ?  Surely,  none 
of  these  things  will  be  pretended.  We  objected  to  the  policy  pur- 
sued. When  overruled,  and  no  other  resource  was  left  to  us, 
vre  resolved,  in  humble  submission  to  the  omnipotence  of  the 
State  Department,  to  make  the  most  of  a  bad  position  and  to  devote 
every  means  in  our  power  to  the  attainment  of  success. 

It  may  be  presumed  that  our  objections  to  the  submission  are 
not  relied  upon  as  acts  of  ratification.  Perhaps  that  point  is 
mainly  founded  on  our  prayer  to  be  heard  before  Louis  Napoleon. 
What  else  could  we  have  done  at  that  stage  of  the  affair  ?  Silence 
would  have  been  deemed  assent.  Any  omission  on  our  part  to  do 
and  suggest  whatever  was  in  our  power  and  which  could  possibly 
conduce  to  success,  would  have  been  disrespectful  toward  our 
government,  and  might  justly  have  been  condemned.  Desperate  as 
the  case  may  have  seemed  to  us,  it  did  not  appear  so  to  the 


151 

government,  and  surely  we  were  right  in  straining  every  nerve  to 
eecure  success.  The  spirit  which  animated  our  gallant  tars  in  the 
midnight  combat  at  Fayal,  secured  neither  safety  nor  entire  suc- 
cess ;  but  it  inflicted  upon  the  enemy  an  irreparable  wound.  It 
reflected  lustre  upon  our  country.  The  same  wise,  gallant,  perse- 
vering, and  indomitable  spirit,  presided  over  this  last  effort  to  sus- 
tain a  righteous  cause  sinking  under  the  combined  influence  of 
artifice  in  the  enemy,  partiality  in  the  judge  and  oversight  in  the 
prosecutors.  It  did  not  succeed  ;  but  this  court  will  not  permit  it 
to  prejudice  the  man  who  made  it.  On  the  contrary,  it  was  on  his 
part  a  performance  of  duty.  Instead  of  justifying  his  con- 
demnation to  perpetual  silence  as  a  willing  participator  in  this 
unwise  submission,  it  is  precisely  the  act  which  secures  him  still  a 
standing  in  court,  as  a  claimant,  and  entitles  him  this  day  to 
ask  a  judicial  sentence  against  the  unjust  arbiter.  Judcx  damnatur 
cum  nocens  absolvitur. 

There  is  something  most  irrational  in  the  pretence  that  this 
prayer  for  leave  to  be  heard,  although  rejected,  was  a  ratification 
by  us  of  all  that  had  been  done.  A  gladiator  cast  naked  and 
weaponless  into  the  arena,  would  instinctively  call  for  a  sword  as 
the  lion  approached,  him.  According  to  our  learned  adversary's 
notions  of  justice,  this  last  prayer  of  the  predestined  victim, 
although  cruelly  denied,  would  be  an  approval  of  his  sentence  to 
the  unequal  conflict.  "We  dismiss,  without  further  comment,  this 
idlest  of  all  idle  pretences. 

It  has  been  urged  that  Captain  Reid  ought  to  have  surren- 
dered ;  that  he  would  have  suffered  no  dishonor  in  yielding  without 
a  blow.  Suppose  it  to  be  so,  was  there  neither  merit  nor  honor  in 
the  opposite  course  ?  But  we  cannot  agree  with  the  learned  solici- 
tor in  this.  An  act  of  Congress  passed  at  the  commencement  of 
the  war,  directed  the  President  to  prepare  instructions  and  to  cause 
a  copy  to  be  delivered  to  the  captain  of  every  private  armed  crui- 
ser.— 2  Statutes  at  large,  p.  161,  §  8.  Our  copy  was  lost  in  the 
Armstrong  ;  knowing  that  a  line  of  conduct  very  different  from 
tame  and  unresisting  submission,  was  commanded,  we  have  sought 


162  BEIG   GENERAL   ARMSTRONG. 

for  the  original  among  the  archives  of  the  department,  but  without 
success.  The  same  remorseless  enemy  who  destroyed  the  copy  at 
Fayal,  at  abont  the  same  moment,  destroyed  the  original  record  at 
this  capitol.  We  cannot  therefore,  produce  it,  but  we  submit  that 
this  court  should  infer  the  fact.  The  instructions  undoubtedly  were 
to  use  the  utmost  exertions  to  defeat  the  military  and  naval  forces  of 
the  enemy,  whenever  and  wherever  encountered.  The  ninth  section 
of  the  same  act  gave  a  bounty  to  each  person  on  board,  when 
any  privateer  burnt,  sunk,  or  destroyed  an  armed  vessel  of  the 
enemy  of  equal  force. 

Pensions  are  also  allowed  by  the  acts  of  Congress  to  every  officer, 
seaman  and  marine  belonging  to  a  privateer,  disabled  in  any 
engagement,  with  the  armed  vessels  of  the  enemy. — Statutes  at  large, 
vol.  2,  p  799,  §  2. 

This  point  ought  not  to  have  been  urged  by  the  counsel  for  the 
government.  Indeed  the  fact  that  it  is  here  urged  with  a  hope  of 
success,  considering  the  ground  of  the  arbiter's  decision  against 
ns,  gives  great,  and  we  conceive  conclusive  force  to  a  distinct 
equity  entitling  us  to  compensation  from  the  public  treasury. 

The  facts  and  circumstances  in  proof,  show  clearly  that  Captain 
Lloyd's  object  was  to  possess  himself  of  the  General  Armstrong, 
for  the  purpose  of  employing  her  against  the  unprotected  villages 
and  hamlets  upon  our  sea-board. 

We  have  shown  that  the  first  approach  was  by  many  boats,  and 
that  the  men  in  them  must  have  been  armed.  Louis  Napoleon 
admits  the  former  fact ;  indubitable  results  make  manifest  the 
latter.  The  letter  of  Consul  Graves  proves  Lloyd's  desire  to  cap- 
ture the  vessel  in  an  uninjured  state,  and  the  first  approach  as 
proved  by  Faussett  himself,  shows  a  design  to  carry  her  by  sur- 
prise. His  pinnace,  as  he  calls  it,  when  fired  into,  was  immediately 
alongside  of  the  Armstrong,  so  near  that  he  employed  a  boat-hook 
to  direct  her  motions. 

These  circumstances  are,  we  say,  entirely  satisfactory  proof  of 
the  design  imputed. 

How  great  then  was  the  merit  of  Captain  Reid,  how  deep  were 


SPEECH   OF   CHARLES   o'CQNOK,  ESQ.  153 

our  obligations   to   him   and  his   gallant  companions   for  having 
defeated  it. 

Independently  of  the  right  to  reimbursement  from  Portugal,  they 
have  a  direct  claim  upon  the  equity  and  justice  of  their  country. 

When  the  boats  first  approached,  symptoms  of  this  design,  in  the 
judgment  of  Captain  Reid,  were  manifest.  If  Captain  Reid  had 
preserved  a  pusillanimous  or  selfishly  pacific  demeanor,  submitted 
to  capture,  and  allowed  his  vessel  to  become  a  weapon  of  offence 
against  his  country,  the  validity  of  his  claim  against  Portugal 
never  could  have  been  effectually  questioned.  But  he  acted  on 
appearances,  defeated  the  design,  crippled  a  whole  British  fleet, 
and  conducted  his  operations  in  a  manner  at  once  so  judi- 
cious and  so  gallant,  that  whilst,  considering  the  forces  employed, 
they  excel  in  martial  glory  and  fearful  consequences  to  the  enemy, 
any  event  of  the  whole  war,  every  spectator,  including  even  the 
Portuguese  allies  of  our  enemy — many  of  whom  were  injured  in 
person  and  property,  during  the  conflict — justified  them  as  acts  of 
imperiously  necessary  self-defence,  warranted  by  the  great  princi- 
ples of  natural  and  international  law,  notwithstanding  that  they 
were  conducted  within  a  neutral  territory.  His  motive  could  only 
have  been  to  defeat  this  pernicious  design,  his  acts  could  not  have 
been  dictated  by  rashness  and  temerity,  or  by  any  selfish  purpose. 
All  the  circumstances  repel  the  imputation  of  rashness  ;  selfishness 
would  have  counselled  submission  to  the  enemy.  He  acted  on  a 
belief  which  we  can  now  see  was  amply  justified  ;  he  defeated  the 
hostile  intent.  No  mortal  can  set  limits  to  the  benefit  which  may 
probably  have  resulted  to  these  United  States,  from  that  defeat. 

Yet  the  very  nature  of  the  case  rendered  -proof  that  that  intent 
actually  existed  extremely  difficult.  Counter-evidence  must  of 
course  be  very  accessible  to  the  unprincipled  assailant.  The  intent 
itself  was  fraudulent  and  dishonorable.  Those  engaged  in  it  could 
not  be  very  conscientious.  Falsehood,  deception  and  prevarication, 
are  the  invariable  allies  of  fraud.  In  submitting  himself  to  the 
government  of  his  well-founded  opinion  on  this  point,  Captain 


154  BRIG   GENERAL   ARMSTRONG. 

Reid  performed  an  act  of  disinterested  devotion  to  the  defence 
of  his  country.  It  was  a  departure  from  what  the  solicitor  now 
calls  "  the  private  business  speculation  in  which  he  was  engaged." 
It  was  a  voluntary  act  of  national  defence.  By  entering  upon  it, 
he  threw  away  his  certain  claim  to  reimbursement  from  the  Portu- 
guese government,  for  it  exposed  him  to  that  very  judicial  con- 
demnation by  which  the  claim  has  been  sacrificed.  Upon  any 
proofs  which  could  ever  be  produced  it  might  be  to  a  partial  arbi- 
trator, nay,  to  any  tribunal  quite  "uncertain"  that  the  hostile  and 
aggressive  intent  which  he  anticipated  and  repelled,  had  any  exist- 
ence except  in  his  own  imagination.  < 

In  thus  judging  and  acting,  Captain  Reid  performed  a  great 
public  benefit  He  carried  on  war  agaiust  the  enemy  at  his  own 
expense,  and  it  was  only  necsssary  to  satisfy  the  constituted  author- 
ities of  his  country  that  the  act  was  a  proper  one  to  be  ratified 
and  adopted,  in  order  to  give  him  a  perfect  claim  in  equity  for 
reimbursement  of  the  cost  from  the  public  treasury. 

A  government  at  war,  always  contemplates  carrying  on  hos- 
tilities at  the  public  cost  by  the  employment  of  force  against 
the  enemy  at  such  points  as  may  seem  most  likely  to  prove  effectual. 
And,  although  it  is  true  that  no  citizen  is  authorized  to  assume  the 
direction  of  war  measures,  yet  whenever  a  private  individual, 
with  no  motive  but  the  public  good,  voluntarily  avails  himself  of 
a  favorable  opportunity,  and  bears  the  brunt  of  a  contest  which 
government  would  gladly  have  assumed,  could  it  have  foreseen  the 
occasion,  we  conceive  that  there  arises  in  his  favor  an  equitable 
claim  to  reimbursement. 

The  principles  of  enlarged  equity  and  good  conscience  illustrated 
by  the  voluntary  service  in  rescuing  the  stack  of  wheat  from 
impending  peril  mentioned  in  20th  Johnson's  Reports,  apply  to 
such  cases,  and  require  the  government  to  indemnify  the  patriotic 
actors.* 

*  The  point  of  law  here  contended  for  was  affirmed  by  the  Commissioners  of  Claims  under 
the  late  convention  with  Great  Britain,  in  re  The  Hudson's  Bay  Company.— President's  Mes- 
•age  of  Aug.  11, 1S56,  p.  165.  See  also  opinion  of  Denio,  Ch.  J.  8  Kernan's  N.  Y.  Reports,  149. 


SPEECH   OF  CHAKLE8   o'cONOB,  ESQ.  155 

There  is  still  another  distinct  head  under  which  our  claim  should 
be  allowed. . 

It  is  asserted  by  the  learned  solicitor,  and  cannot  be  denied, 
that  the  government  has  entire  and  absolute  control  over  such 
claims  as  that  which  existed  in  this  case  against  Portugal,  and  is 
alone  competent  to  prosecute  them.  Of  course,  we  admit  this  pro- 
position. But  whilst  we  concede  the  power,  we  deny  that 
the  government  has  the  right  deliberately  and  intentionally  to 
work  an  inevitable  shipwreck,  or  an  express  extinction  of  the 
private  citizens'  claim,  for  its  own  ease  in  the  administration  of 
public  affairs,  for  the  sake  of  securing  the  favor,  or  appeasing  the 
resentment  of  a  foreign  power,  or  for  any  object  or  purpose, 
beneficial  only  to  the  public  at  large,  except  upon  full  compensation 
to  the  person  whose  right  is  thus  devoted  to  the  use  of  the  nation. 
This  denial  is  sustained  by  the  eternal  principles  of  justice.  And 
these  principles,  so  far  as  they  touch  this  question,  do  not  rest 
merely  upon  the  authority  of  reason  or  even  of  precedent.  They 
are  consecrated  as  law  by  the  fifth  amendment  to  the  Constitution. 
It  provides  that  "  private  property  shall  not  be  taken  for  public 
use  without  just  compensation."  No  one  will  pretend  that  a  right 
to  reimbursement  for  an  injury  is  riot  property,  or  that  the 
extinguishment  of  all  remedy  for  the  enforcement  of  such  a  right, 
is  not  taking  away  tha  right  from  him  who  possessed  it. 

This  fundamental  rule  has  been  violated  by  the  government  of 
the  United  States,  in  respect  to  the  claim  now  before  your  Honors  ; 
and,  we  insist,  that  whenever  the  heel  of  power  tramples  in  this 
way  upon  the  interests  of  a  private  citizen,  a  reference  of  his  claim 
to  this  court,  vests  it  with  the  means,  and  charges  upon  it  the  duty 
of  vindicating  the  right  and  exacting  justice  from  the  conscience  of 
the  Republic. 

Some  further  general  observations  relative  to  the  powers  and 
duty  of  government  in  prosecuting  against  foreign  powers  claims 
for  redress  of  grievances  suffered  by  its  citizens,  may  here  be  pro- 
per. 


156  BBIG   GENERAL   ARMSTRONG. 

• 

Though  its  action  is  representative,  and  bears  a  certain  analogy 
to  that  of  an  agent,  yet,  unlike  any  other  agency,  its  power  over  the 
subject  is  supreme.  Whatever  the  government  could  do  in  its 
legislative  capacity  it  could  properly  have  done  in  reference  to  this 
claim.  Undoubtedly,  in  pursuing  demands  against  foreign  states, 
the  government  must  be  the  sole  judge  of  the  measures  to  be 
adopted.  It  is  the  judge  whether  war  shall  be  made,  and  how 
long  the  negotiations  shall  be  permitted  to  progress  before  resort 
shall  be  had  to  extreme  measures.  The  interests  of  particular  indi- 
viduals are  not  to  be  preferred  to  the  interests  of  the  whole  ;  nor 
are  the  horrors  of  war  to  be  rashly  invoked.  It  is  also  the  sole 
and  the  competent  judge  whether  the  claim  actually  exists.  It 
has  the  right  to  take  adequate  measures  for  investigating  the  facts, 
and  ascertaining  not  only  the  existence  of  the  claim,  but  whether  it 
is  of  such  a  nature  as  to  be  properly  enforceable  by  governmental 
agency.  This  may  be  done  in  any  tribunal,  or  by  any  officer  or 
instrumentality  the  government  may  think  fit  to  select.  This  is 
manifestly  so,  because  in  the  nature  of  things  the  government  can- 
not otherwise  act  intelligently.  As  a  consequence,  we  must  con- 
cede that  when  the  official  inquiry  thus  instituted  results  adversely 
to  the  claim,  the  suitor  is  obliged  to  submit.  Even  though  his 
claim  be  just,  he  must  relinquish  its  prosecution.  In  such  a  case 
he  is  in  no  worse  plight  than  the  owner  of  any  other  righteous 
demand,  who,  from  want  of  evidence  or  other  accident,  has  failed 
to  persuade  a  court  and  jury  of  its  justice  or  legality. 

Even  when  a  claim  has  been  found  upon  due  examination  to  be 
just,  we  concede  that  the  suitor  must  submit  to  such  delay  in  the 
prosecution  of  it  as  the  exigencies  of  public  affairs  may  occasion  ; 
nor  is  there  any  greater  right  to  complain  of  delays  than  belong  to 
suitors  in  our  ordinary  courts  of  justice.  Much  time  is  often 
required  to  carry  these  cases  through,  and  consequently  mere  delay 
cannot  be  considered  a  neglect  of  duty. 

Questions  of  more  difficulty  may  arise  in  respect  to  the  powers 
of  government  to  compromise  a  claim  which  it  has  pronounced  to 


SPEECH  OP  CHARLES   o'cONOE,  ESQ-  157 

be  just.  For  instance,  whether  in  consideration  of  some  special  cir- 
cumstances government  would  be  authorized,  in  a  class  of  cases,  to 
accept  as  in  full,  a  portion  of  the  sum  due  ?  Perhaps  there  are 
grounds  which  might  justify  the  exercise  of  such  a  discretion.  We 
do  not  mean  to  deny  or  dispute  it,  because  the  inquiry  is  altogether 
irrelevant  to  this  case. 

It  has  been  contended  that  when  prosecuting  claims  against  a 
foreign  State,  government  has  a  right  to  discriminate  between 
those  equally  meritorious,  to  prosecute  some  and  abandon  others. 
Perhaps  this  may  be  so.  But  there  is  an  universally  received 
notion  of  justice  which  forbids  such  a  course.  The  learned  solici' 
tor,  may,  if  he  pleases,  pronounce  it  a  vulgar  prejudice — certainly 
its  condemnation  is  usually  expressed  in  a  somewhat  vulgar  form 
of  speech.  It  is  called  "  making  fish  of  one,  and  flesh  of  another." 
Even  in  matters  of  gift  or  courtesy  it  is  disapproved.  Equality 
is  approved  by  the  universal  sense  of  mankind — in  the  distribution 
of  alms,  the  bestowal  of  complimentary  gifts,  and  the  tender  of 
courtesy,  as  well  as  in  the  administration  of  justice.  When  a 
parent's  testament  discriminates  between  his  children,  it  often  leaves 
a  "plague-spot"  upon  the  testator's  memory,  and  lights  the  bale- 
fill  fires  of  hatred  amongst  his  posterity.  How  far  a  simple  dis* 
crimination  between  claims  of  precisely  equal  merit  might  be  corn* 
petent,  need  not  be  determined.  No  such  case  is  before  the  court 
This  claim  was  never  thus  simply  discriminated  against  and  aban- 
doned. We  will  consider  hereafter  what  may  be  the  just  result 
of  that  which  did  take  place,  that  is  to  say,  an  abandonment  of  it 
by  the  government  for  a  valuable  consideration  received  by  the 
public. 

The  right  of  the  government  as  prosecutor  of  claims  for  the  spo- 
liation of  its  citizens,  to  discriminate,  to  a  certain  extent,  between 
classes  of  claims,  might  safely  be  conceded,  and  perhaps  could  not 
be  denied.  For  instance,  in  negotiating  with  a  'foreign  state,  all 
claims  existing  prior  to  a  certain  date,  or  to  some  public  event,  might 
perhaps,  be  deferred  ;  all  claims  constituting  a  class,  and,  as  such, 


158  BRIG  GENERAL  ARMSTRONG. 

falling  within  certain  principles  apparently  detracting  from  their  merit 
might  perhaps  be  relinquished.  This  line  of  action  would  not  always 
involve  a  manifest  violation  of  the  rule  that,  government  should  afford 
equal  protection,  and  extend  equal  benefits  to  all  beneath  its  sway. 
In  imposing  taxes,  and  other  burdens,  the  legislative  power  often 
selects  certain  classes.  Particular  trades  or  occupations  hitherto 
lawful  may,  by  an  exercise  of  legislative  discretion,  be  adjudged  to 
be  prejudicial  to  the  public  interest,  and  henceforth  prohibited,  or 
restrained  within  new  and  more  confined  limits.  The  legislative 
power  decrees  that  only  males  between  certain  ages  shall  be  sent 
to  bare  their  bosoms  to  the  enemy,  and  ward  off  his  assaults,  thus 
exempting  all  others  from  military  duty.  Inequalities  in  admi- 
nistration like  these  which  go  upon  some  reason,  wisely  or  not, 
assumed  to  be  just,  have  not  the  impress  of  unfairness  and  favorit- 
ism. We  need  not  in  this  case  deny  their  lawfulness.  But  whilst 
we  concede  to  the  government,  in  its  legislative  action,  and  in  its 
executive  administration,  this  right  of  discriminating  between  large 
classes  of  cases  or  persons,  in  the  imposition  of  burthens  and  the 
granting  or  withholding  of  privileges,  we  deny  its  right  to  single 
out  for  sacrifice,  a  single  individual,  or  one  particular  claim. 
Such  an  act  is  repugnant  to  the  general  sense  of  mankind  ;  and, 
if  it  be  designed  for  the  public  interest,  is  forbidden  by  the 
Constitution,  unless  upon  full  compensation  made  from  the  public 
treasury. 

In  the  first  place  the  government  investigated  the  merits  of  this 
claim,  and  determined  that  it  was  valid.  It  was  in  the  power  of  the 
government  on  obtaining  new  lights  to  have  revoked  this  decision, 
but  it  never  has  done  so.  It  never  can  do  so,  the  facts  forbid  it. 
Asparens  patriot,  it  assumed  the  duty  of  enforcing  against  Portugal, 
this  claim,  together  with  several  others  of  equal,  but  not  of  greater 
validity.  Negotiations  were  commenced  accordingly,  and  after 
many  years  they  reached  a  conclusion.  The  ultimatum  of  Portugal 
was,  that  although  she  denied  the  justice  of  all  the  claims,  yet, 
for  the  sake  of  peace,  she  would  recede  from  her  opposition  to  all 


SPEECH   OF  CHAKLES   o'CQNOK,  ESQ.  159 

the  others,  and  would  pay  them  in  full,  provided  our  government 
would  refer  this  one  to  arbitration.  Whether  she  could  be  driven 
from  this  position  by  any  thing  less  than  actual  compulsion,  was  to 
some  extent  tested  by  General  Taylor's  administration.  The 
United  States  could  not  separate  the  several  parts  of  the  offer  ; 
they  were  obliged  to  accept  it  or  reject  it  in  toto.  2  Sandford's 
Chancery  Reports,  244.  Mr.  Clay,  our  minister,  by  authority 
of  his  government,  rejected  it,  demanded  his  passports,  and  sailed 
from  the  Tagus. 

At  this  critical  moment  in  the  history  of  our  claim,  the  heroic 
head  of  our  government  was  summoned  from  mortal  to  immortal  life. 
His  more  cool  successor,  armed  with  a  higher  degree  of  prudence, 
shrunk  from  the  responsibilities  of  a  war  with  that  nation  which 
had  been  pleading  her  own  weakness  and  incapacity  for  half  a  cen- 
tury. He  at  once  relinquished  the  high  ground  taken  by  his  pre- 
decessor, and  accepted  the  offer  of  Portugal. 

The  treaty  thereupon  made,  singled  out  the  case  of  the  General 
Armstrong,  for  umpirage,  and  the  other  claims  were  paid  accord- 
ingly. 

We  do  not  deny  that  our  government  might  fairly  have  submit- 
ted any  mere  question  of  law  involved  in  the  case  even  to  a  third 
power,  since  on  that  part  of  the  case  error  seems  to  have  been 
impossible.  Perhaps  we  could  not  complain  of  an  investigation  of 
the  facts  by  a  jury  or  by  any  responsible  and1  impartial  individuals. 
But  inasmuch  as,  from  the  outset,  it  was  plainly  manifest  to  the 
commonest  understanding,  that  a  reference  of  the  claim,  as  a 
question  of  fact,  or  as  a  mixed  question  of  law  and  fact,  to  any 
potentate  of  Europe,  necessarily  involved  its  rejection,  we  insist 
that  this  treaty,  taken  in  connection  with  the  subsequent  unwar- 
rantable acquiescence  of  our  government  in  Louis  Napoleon's 
award,  was  a  sacrifice  of  the  claim  for  the  sake  of  accomplishing  ends 
deemed  to  be  important  to  the  public,  that  is  to  say,  the  recovery 
of  other  claims,  and  the  restoration  of  amity  with  Portugal.  If  we 
are  mistaken  in  the  views  which  have  been  expressed  to  the  con- 


160  BBIQ  GENERAL  ABMSTBONG. 

trary,  and  the  treaty  did,  indeed,  contemplate  a  submission  of  the 
facts,  our  point  is  only  made  the  more  brief  and  direct.  Then  the 
treaty  itself  was  a  substantial  surrender  of  our  claim.  All  that 
followed  was  "leather  or  prunella,"  the  mere  ceremonial  of  the 
release.  Louis  Napoleon  was  the  scrivener,  chosen  by  the  high 
contracting  parties,  to  select  the  phrase  and  apply  the  forms 
required  for  a  solemn  authentication  of  their  preconceived  design. 
We  do  not  mean  that,  in  a  common  and  vulgar  sense,  our  govern- 
ment designed  this  relinquishment,  but  it  is  sound  law  and  con- 
formable to  reason,  that  parties  are  always  held  to  intend  the 
necessary  result  of  their  acts.  Portugal  saw  that  arbitration  and 
•  release  were  practical  synonyms  ;  the  claimants  saw  it  and  remon- 
strated against  the  measure  ;  our  government  ought  to  have  seen 
it,  was  bound  to  have  seen  it,  and  must  therefore  be  adjudged  to 
have  seen  it. 

Thus  we  establish  our  point  that  this  claim  being  private  pro- 
perty, was  devoted  to  destruction  for  purposes  of  State,  which  fact, 
by  the  Constitution  and  by  the  elementary  principles  of  general 
justice,  entitles  the  owners  to  compensation  from  the  public  trea- 
sury. , 

The  great  antiquity  of  this  claim  has  been  urged  against  it.  That 
is  certainly  not  the  fault  of  the  claimants.  They  presented  it  in 
their  protest  on  the  very  day  the  Q-eneral  Armstrong  was  destroyed ; 
they  have  patiently  but  respectfully  pressed  it  by  every  means  in 
their  power  from  that  day  to  the  present.  If  it  has  been  neglected 
by  the  government  which  alone  had  the  means  of  enforcing  it,  that 
fact,  so  far  from  being  an  objection  to  the  claim  as  now  presented 
to  this  court,  is  the  very  basis  on  which  it  rests. 

The  learned  solicitor,  however,  thinks  he  has  produced  some 
thing  in  the  shape  of  authority  against  us.  He  says  the  claim  has 
been  thrice  rejected.  He  has  not  pointed  to  the  evidence  of  .these 
rejections,  nor  to  that  place  in  the  history  of  the  case  where  we 
may  find  them  recorded ;  consequently  we  are  left  to  conjecture 
what  are  the  acts  which  he  calls  rejections  and  we  can  only  invite 


SPEECH   OF   CHAKLES   o'cONOE,    ESQ.  161 

attention  to  the  circumstances  upon  which  he  may  be  supposed  to 
rely. 

The  first  of  these  rejections  took  place  in  1817.  It  is  found  in 
the  report  of  a  Senate  committee  upon  the  memorial  of  the  owners 
of  the  General  Armstrong.  Perhaps  that  report  was  right  in  say- 
ing that  the  owners  were  not,  at  that  time,  or,  upon  the  grounds 
set  forth  by  by  them,  entitled  to  payment  from  the  public  treasury. 
But  that  very  report  declared  "that  indemnity  from  Portugal 
ought  to  be  insisted  on  as  an  affair  of  State."  This  is  rejection  the 
first !  Is  it  not  an  express  recognition  of  all  that  we  now  assert  ? 

In  1846  the  claim  was  again  presented  to  Congress,  in  conse- 
quence of  its  not  having  been  followed  up  against  Portugal  by  Mr. 
Upshur,  or  perhaps,  as  has  been  suggested,  by  Mr.  Upshur's  clerk, 
and  in  consequence  of  its  having  been  treated  in  like  manner  by 
Mr.  Calhoun,  who,  it  is  said,  acted  through  the  very  same  irrespon- 
sible agency.  It  was  then  referred  to  the  committee  of  the  Senate 
on  foreign  affairs,  who,  in  their  report,  after  reviewing  the  circum- 
stances of  the  case,  advised  a  polite  reference  of  the  case  to  the 
State  Department  to  be  proceeded  with  against  Portugal,  according 
to  the  recommendations  of  the  report  made  in  1811.  This  report 
was  adopted  by  the  Senate.  For  some  undiscoverable  reason, 
however,  the  department  failed  to  act  until  1849,  when  Mr.  Secre- 
tary Clayton  took  the  matter  up,  and  prosecuted  it  with  vigor,  and 
to  the  very  verge,  it  has  been  said,  of  a  war  with  Portugal.  This 
is  rejection  the  second  ! 

We  now  proceed  to  the  third  rejection.  After  the  delivery  of 
of  Louis  Napoleon's  award,  two  distinct  petitions  were  presented, 
one  to  each  house  of  Congress  for  the  allowance  of  the  claim  in  its 
present  form.  And  what  were  the  results  ?  In  the  House  of 
Representatives,  a  report  of  the  most  favorable  kind  was  made. 
"  It  says  that  a  stronger  case  for  relief  in  equity  could  scarcely  have 
been  presented."  The  House  not  having  sufficient  time  to  take  up 
the  claim,  referred  it  to  this  court.  Surely  that  was  not  a  rejection  ! 

In  the  Senate  an  equally  favorable  report  was  unanimously  pre- 
12 


162  BRIG    GENERAL    ARMSTRONG. 

Bented  by  the  Committee  on  Foreign  Affairs.  That  committee  was 
composed  of  men  not  unknown  to  fame,  most  of  whom  have  borne 
a  conspicuous  part  in  the  legislation  of  the  country,  and  all  of  whom 
may  be  supposed  to  have  understood  pretty  well  the  principles  of 
justice  and  also  what  was  due  to  the  honor  of  their  country. 

A  bill  was  accordingly  brought  into  the  Senate  for  the  relief  of 
the  claimants.  The  fate  of  that  bill  is  the  only  thing  bearing  any 
resemblance  to  a  rejection  which  has  ever  occured  in  the  history  of 
this  claim  ;  and,  therefore,  it  may  be  proper  to  state  somewhat  in 
detail  the  action  of  the  Senate.  It  is  appealed  to  as  evidence 
against  the  justice  of  our  claim,  and  therefore,  it  is  certainly  proper 
to  scrutinize  it  somewhat  carefully,  in  order  to  ascertain  whether  it 
amounts  to  a  rejection.  The  bill  was  presented  and,  without  much 
examination,  was  lost  by  a  vote  of  12  to  21  ;  a  reconsideration 
took  place,  and  by  a  vote  of  22  to  17  it  was  ordered  to  its  third 
reading.  This  is  generally  regarded  as  a  test  vote  ;  but  scruples 
were  indulged  in,  another  reconsideration  took  place,  and  finally  at 
the  close  of  the  session,  after  a  very  animated  debate — a  full  report 
of  which  is  presented  to  your  Honors — the  bill  was  laid  upon  the 
table  by  a  single  vote.  This  is  not  a  rejection,  it  is  something 
like  the  put-off  of  a  polite,  but  evasive  debtor,  "  Call  again 
to-morrow."  The  whole  technical  force  of  such  a  vote  is  to  post- 
pone the  consideration  of  a  measure  for  the  session.  Its  moral 
weight,  in  this  instance,  deserves  a  passing  notice.  It  was  25  to  24, 
consequently  this  lean  majority — one  single  legislator — constitutes 
the  whole  length,  the  whole  breadth,  and  the  whole  strength  of  the 
three  alleged  rejections. 

The  claim  was  once  allowed  by  a  strong  vote,  and  the  utmost 
that  can  be  alleged  against  it  is,  that  it  was  once  indefinitely  post- 
poned by  a  majority  consisting  of  one  single  vote.  It  is  true,  the 
claimants  have  been  delayed  and  postponed  ;  they  have  been 
turned  over  to  Portugal  for  redress,  and  sent  muzzled  and  fettered 
to  the  footstool  of  Louis  Napoleon  for  justice  ;  but  their  merit 
has  never  been  denied.  Every  congressional  report  upon  the  sub- 


SPEECH  Off  C3ABLE8  o'cONOE,  ESQ.  163 

ject,  and  they  amount  to  four  in  number,  covering  a  period  of  nearly 
forty  years,  is  in  their  favor. 

Captain  Reid  has  been  reproached  with  sordid  motives  in 
mingling  with  the  glorious  history  of  his  achievement  the  accep- 
tance of  a  pecuniary  recompense.  Is  it  dishonorable  in  the 
war-worn  veteran,  to  accept  from  the  overflowing  treasury  of 
his  happy  and  prosperous  country,  the  means  of  subsistence  in 
his  old  age,  and  of  decent  sepulture  when  his  hour  of  part- 
ing shall  arrive  ?  Surely  not.  The  learned  solicitor  accompanied 
his  lecture  on  this  head,  with  a  reference  to  the  example  of 
him  whose  deeds  and  memory  are  deemed  the  best  illustrations 
of  all  that  is  heroic  in  patriotism,  and  exalted  in  honor  and  moral 
rectitude.  Though  Captain  Reid  presumes  not  to  challenge  a  com- 
parison, we  must  say  that  this  allusion  of  the  learned  solicitor  was 
most  unfortunate.  Though  there  be  no  comparison,  neither  is  there 
in  this  particular,  any  contrast.  Though  Washington  never 
descended  to  the  grade  of  a  hireling,  and  persisted  to  the  last  in 
refusing  compensation,  though  he  did  not  even  accept  reimburse- 
ment of  his  personal  expenses  from  our  impoverished  treasury 
during  the  conflict ;  yet  it  is  one  of  the  recorded  proofs  of  his 
practical  wisdom,  of  his  freedom  from  mere  sentimentality,  and  of 
his  precision  and  exactitude  in  the  details  of  duty,  that  when  his 
country  had  achieved  her  independence,  and  was  able  and  willing  to 
do  justice,  he  rendered  in  his  own  hand -writing,  a  minute  statement 
of  his  expenses  in  the  public  service,  and  received  from  Congress 
a  full  pecuniary  indemnity.  This  parallel,  which  but  for  the  learned 
solicitor's  introduction  of  it,  we  would  not  have  ventured  to  exhibit, 
refutes  another  of  his  arguments.  He  says  that  all  claims  allowed 
by  government  ought  to  be  founded  in  some  prescribed  rule  of  law. 
Washington  declined  that  very  payment  for  his  time  and  services 
which  the  law  allowed,  and  accepted  the  indemnity  which  no  known 
law  directly  sanctioned ;  but  which,  being  due  on  principles  of 
natural  justice,  was  conceded  by  the  enlightened  equity  of  Congress 
and  the  gratitude  of  his  country. 

Captain  Reid  asks  no  gratuity  ;  he  asks  neither  pay  nor  reward 


1(M  BRIG  GENERAL   ARMSTRONG. 

for  his  personal  toil,  sufferings  or  achievements.  Simple  indemnity 
for  the  actual  pecuniary  losses  of  himself  and  his  brave  companions, 
is  all  that  he  seeks  for  himself  or  them. 

Here  and  elsewhere,  it  has  been  again  and  again  urged  that  the 
allowance  of  this  claim  would  be  bad  policy  and  "  a  dangerous 
precedent." 

Faying  a  just  indemnity  for  such  losses,  it  is  said,  would  lead  to 
numerous  claims  of  the  kind.  When  claims  are  not  founded  on 
meritorious  services,  they  can  be  rejected.  But  we  cannot  see  that 
any  mischief  will  result  to  our  country  or  its  interests  from  allowing 
indemnity  for  the  cost  of  achievements  in  war,  so  signal  in  them- 
selves and  so  beneficial  in  their  consequences  as  that  now  under 
review.  May  such  "  precedents "  never  be  wanting.  They  must 
ever  redound  to  the  profit  and  honor  of  our  country,  and  can  never 
prove  dangerous,  except  to  our  enemies. 

It  is  said,  if  we  repudiate  the  award  of  Louis  Napoleon,  it  will 
disturb  our  amicable  relations  with  Prance  and  prevent  European 
potentates  from  ever  acting  as  umpires  for  us.  France  cannot  easily 
make  a  national  quarrel  out  of  our  awarding  compensation  to  our 
gallant  tars  for  doing  their  duty.  And  if  the  effect  of  your 
decision  should  be  to  deter,  for  all  future  time,  American  statesmen 
from  submitting  to  the  arbitrary  determination  of  an  European 
potentate,  without  evidence  and  without  argument,  questions  of 
fact  involving  our  national  honor,  so  much  the  better.  If  it  shall 
also  deter  European  rulers  from  ever  again  assuming  the  decision 
of  such  questions,  it  will  render  them  an  important  service.  He 
who  is  by  position  and  circumstances  disqualified  from  exercising  an 
impartial  judgment,  sins  against  his  best  interests  and  his  own 
honor  in  assuming  the  office  of  judge. 

The  award  is  founded  in  error.  It  seeks  to  falsify  American  his- 
tory, to  fix  a  stigma  upon  our  national  character,  and,  at  our 
expense,  to  rescue  our  enemy  from  merited  opprobrium.  Unless  by 
some  competent  authority  repudiated  upon  our  part,  we  must  be 
deemed,  through  all  future  time,  as  having  subscribed  to  its  truth 
and  our  own  dishonor.  Instead  of  allowing  it  to  seem  thus  a«qui- 


SPEECH    OF   CHARLES   o'cONOB,  ESQ.  165 

esced  in,  this  court,  as  it  may  do  consistently  with  truth  and  justice, 
ought  to  stamp  upon  the  page  of  history  its  indignant  repro- 
bation of  both  the  reference  and  the  award. 

Let  it  not  be  said  that  posterity  will  prefer  to  the  judgment 
of  this  court,  the  award  of  the  impartial  referee.  In  what  degree 
he  was  impartial  may  be  gathered  from  the  facts.  He  assumed 
powers  not  granted.  He  gave  credit  to  the  denial  of  a  witness 
whose  positive  assertion  he  discredited  and  solemnly  found  to  be 
untrue.  At  the  very  time  of  forming  his  award  he  was  secretly 
progressing  in  negotiations  for  an  alliance  with  Great  Britain,  the 
nation  chiefly  interested  against  us  in  the  controversy.  The 
importance  of  that  alliance,  and  the  necessity  of  securing  it,  may 
be  judged  by  the  stupendous  objects  it  had  in  view,  and  is  now 
struggling  to  accomplish.  Neither  will  it  be  overlooked  that  he 
was  chosen  to  arbitrate  as  President  of  the  Republic  of  France, 
and  that,  when  preparing  the  award,  he  was  actively  engaged  in 
undermining  the  foundations  of  that  government  which,  as  chief 
magistrate,  he  was  pledged  to  maintain.  Though  the  reference 
was  to  a  President,  the  award  came  from  a  king.  With  the  hand 
which  signed  it,  he  had  just  stricken  down  the  liberties  of  his 
country  ;  that  hand  was  yet  reeking  with  the  life-blood  of  a  repub- 
lican constitution. 

No  wonder  that  to  gratify  a  monarchical  ally,  he  readily  sacrificed 
the  rights  of  a  republic. 

You  have  been  asked  to  forbear  from  scrutinizing  too  nicely  the 
justice  of  this  award,  from  considerations  of  deference  to  the  chief 
of  a  sovereign  State  now  in  amity  with  us.  We  ask  you  to 
scrutinize  it  closely,  to  judge  it  fearlessly,  and,  as  becomes  an 
American  tribunal,  to  discard  considerations  of  policy  when  justice 
and  national  renown  are  involved.  If  the  arbiter  were  all  that  his 
most  obsequious  admirers  would  venture  to  assert,  his  merits  have 
been  sufficiently  acknowledged  and  amply  rewarded.  The  liberties 
of  one  republic  have  been  sacrificed  to  his  ambition,  let  us  not 
immolate  the  fame  of  aaother  upon  the  same  unholy  altar. 


166  BRIG   GBNBKAL  ABMBTBONG. 


POINTS   DECIDED    BY   THE   COURT, 


OF   THE    RIGHTS   AKD   OBLIGATIONS   OF   NEUTRALS. 

Airr  violation  of  the  neutrality  of  a  port,  by  either  of  two  belligerents,  is  ft 
breach  of  the  law  of  nations. 

The  property  of  belligerents  when  within  neutral  jurisdiction  is  inviolable. 

It  is  not  lawful  to  make  neutral  territory  the  scene  of  hostility,  or  to  attack  an 
enemy  while  within  it ;  and  if  the  enemy  be  attacked,  or  any  capture  made 
under  neutral  protection,  the  neutral  is  bound  to  redress  the  injury  and 
effect  restitution. 

Where  a  party  attacked,  merely  exercises  the  right  of  self-defence,  it  cannot 
be  a  cause  of  complaint ;  the  breach  rests  with  the  party  violating  the  rights 
of  the  neutral  by  attacking  the  other. 

The  act  of  sending  out  boats  to  effect  a  capture,  is  in  itself  a  direct  act  of 
hostility,  in  violation  of  the  law  of  nations.  No  measure  is  to  be  taken  that 
will  lead  to  immediate  violence. 

Where  an  enemy's  vessel  is  approached  by  the  boats  of  a  belligerent,  in  a 
neutral  port,  with  an  evident  hostile  intention,  the  right  of  self-defence,  and 
law,  and  reason,  justify  the  enemy  in  firing  upon  the  boats,  which  had  been 
hailed  and  warned  to  keep  off.  TJhe  fact  that  the  enemy  fired  the  first  shot, 
does  not  constitute'  them  the  aggressors. 

Where  a  neutral  power  permits  an  enemy's  vessel  to  be  attacked  and  destroyed, 
while  under  neutral  protection,  the  neutral  is  bound  to  make  pecuniary  com- 
pensation for  the  damages  sustained  by  the  injured  party 

Where  the  Governor  of  a  neutral  Territory  remonstrated  against  the  hostile 
aggressions  being  committed  upon  an  enemy's  property,  but  did  not  use  all 
the  means  in  hia  power  to  protect  it,  the  neutral  will  not  be  released  from 
liability. 

The  weakness  of  a  nation,  or  the  want  of  ability  to  protect  her  neutrality 
will  not  relieve  her  from  the  obligation  to  make  compensation  for  property 
destroyed  in  the  neutral  territory. 

OP  ARBITRATION — LIABILITY   OF  THB   GOVERNMENT. 

The  right  of  the  government  to  submit  a  claim  upon  a  foreign  nation,  involv- 
ing the  interests  of  its  citizens,  to  arbitration,  is  not  denied,  but  k  must  ba 
done  with  a  due  regard  to  the  rights  of  the  citizen. 


OF  THE  EIGHTS   AND   OBLIGATIONS   OF   NEUTRALS.          167 

Where  the  government  submits  such  a  case  to  arbitration,  in  which  the  rights 
of  the  citizen  are  disregarded  and  sacrificed,  the  government  is  bound  in 
justice  to  make  him  restitution. 

To  relieve  the  government  from  liability  to  its  citizen  on  this  account,  it  must 
appear  that  the  case  was  one  proper  to  be  submitted  ;  that  he  had  an  oppor- 
tunity of  being  heard  before  the  arbitrator  by  argument  and  proofs ;  that 
the  award  was  certain,  definite,  and  within  the  submission ;  and  that  the 
arbitration  did  not  exceed  his'  powers. 

Where  the  government  has  universally  acknowledged  a  claim  of  its  citizens 
against  a  foreign  nation,  upon  overwhelming  evidence,  and  had  always 
asserted  that  the  foreign  nation  was  bound  to  redress  the  injury ;  when 
It  had  resorted  to  argument,  and  finally,  asserted  its  fixed  determination 
that  the  foreign  nation  must  redress  its  citizens,  it  has  no  right  to  hazard 
the  claim  by  afterwards  submitting  it  to  the  arbitration  of  a  third  power. 
Such  a  case  is  not  proper  for  submission. 

Where  a  case  is  thus  submitted,  without  the  assent  of  the  claimants,  and 
against  their  wishes,  the  government  assumes  the  responsibility,  and  becomea 
liable  to  the  claimants. 

Where  the  government  by  a  treaty  with  a  foreign  nation,  agrees  to  accept  the 
payment  of  certain  claims,  pro  bono  pacis,  with  the  condition  that  a  certain 
special  claim  of  its  citizens  shall  be  arbitrated,  it  is  not  released  from 
responsibility  to  its  own  citizens,  in  case  the  award  is  unfavorable. 

Where  the  government  submits  $,  claim  of  a  citizen  to  arbitration  without  his 
assent,  it  should  provide  that  he  shall  be  fully  and  fairly  heard,  and  have  all 
reasonable  opportunity  to  lay  before  the  arbitrator  the  evidence  on  which  ho 
relies. 

Where  the  government  refused  to  sanction  in  any  manner  the  presentment  of 
a  case  by  the  claimants  to  the  arbitrator,  under  the  construction  of  a  treaty, 
it  will  be  in  violation  of  the  plainest  principles  of  justice,  and  for  such  a 
wrong  at  the  hands  of  the  government,  reparation  should  be  made. 

OF  THE   AWARD  AND  ITS   VALIDITY. 

An  award  made  without  the  party  having  had  an  opportunity  to  be  heard, 
rests  neither  upon  law  nor  justice.  Every  party  should  have  an  opportunity 
to  be  heard  before  the  tribunal  that  is  to  pass  judgment  on  his  rights. 

Where,  by  the  terms  of  a  treaty,  the  matter  submitted  was  a  question  of  law, 
and  the  award  of  the  arbitrator  was  solely  founded  upon  the  facts  held, 
that  the  award  is  void,  because  it  does  not  settle  the  matter  in  dispute,  and 


168  BKIG    GENERAL    ARM6TBOKG. 

the  matter  submitted;  because  it  does  settle  the  question  of  fact,  which  was 
not  submitted,  and  therefore  exceeds  the  submission. 

Where  an  award  is  binding  against  the  government,  which  by  its  own  acts  had 
disregarded  and  sacrificed  the  just  rights  of  its  citizens,  it  is  bound  to  make 
compensation  for  the  neglect  of  its  duty  in  not  affording  them  protection. 

March  11th,  1866. 
CHIEF  JUSTICE  GILCHRIST  delivered  the  opinion  of  the  Court. 

This  case  has  been  pending  before  the  people  and  govern- 
ment of  the  "United  States,  in  various  forms,  for  more  than  forty- 
one  years.  It  has  never,  until  recently,  been  in  a  situation  to  be 
thoroughly  argued  and  investigated  as  a  question  of  law  and  of  fact ; 
although,  from  the  peculiar  circumstances  attending  it,  and  from 
the  discussions  in  Congress,  it  has  commanded  the  attention  and 
excited  the  interest  of  the  public.  We  are  now  to  consider  it,  how- 
ever, in  its  relation  to  individual  rights  and  national  liabilities,  and 
in  this  point  of  view  it  requires  a  careful  consideration. 

The  case  is  an  interesting  one  in  a  national  point  of  view,  not 
only  because  it  relates  to  the  duties  of  neutral  nations  towards 
belligerents,  but  because  it  raises  the  question,  how  far  a  belliger- 
ent power  is  liable  to  its  citizens  for  losses  they  have  sustained 
through  the  neglect  of  their  government  to  insist  that  the  neutral 
nation  shall  perform  its  obligations.  It  is  also  interesting  as  a 
brilliant  illustration  of  the  gallantry  and  self-devotion  of  our  coun- 
trymen. 

The  leading  facts  in  the  case .  have  been  notorious  to  the  Ameri- 
can people  for  more  than  forty  years.  On  the  twenty-sixth  day  of 
September,  1814,  the  American  private  armed  brig  General  Arm- 
strong cast  anchor  in  the  port  of  Fayal,  a  part  of  the  dominions  of 
the  crown  of  Portugal,  to  get  a  supply  of  fresh  water.  In  the  after- 
noon the  British  brig  Carnation,  of  18  guns  ;  the  ship  Rota,  of  38 
guns  ;  and  the  14  gun-ship  Plantagenet,  came  into  port,  and 
anchored  about  seven  o'clock.  In  the  evening  four  boats  approached 
the  General  Armstrong.  Captain  Reid  repeatedly  hailed  them,  and 


DECISION   OF  JUDGE   GILCHKIST.  169 

warned  them  to  keep  off.  They  continued  to  approach,  when  he 
fired  on  them  and  killed  and  wounded  several  men.  The  boats 
returned  the  fire,  and  killed  one  man,  and  wounded  the  first  lieu- 
tenant. The  British  then  retreated,  and  about  midnight  renewed 
the  attack  with  twelve  boats  and  about  four  hundred  men,  which 
ended  in  their  total  defeat  with  great  slaughter,  and  the  partial 
destruction  of  their  boats.  The  American  brig  carried  seven  guns, 
and  their  crew  amounted  to  ninety  men.  She  had  two  killed,  and 
seven  wounded,  while  the  killed  and  wounded  on  the  part  of  the 
British  must  have  been  nearly  two  hundred  men.  So  great  was  the 
loss  that  the  Thais  and  Calypso,  two  sloops  of  war,  which  arrived 
a  few  days  after,  were  sent  home  with  the  wounded  men.  The 
British  commander,  Captain  Lloyd,  finding  this  mode  of  attack 
unavailing,  with  laudable  discretion  anchored  the  Carnation  close  in 
shore,  and  cannonaded  the  brig,  when  her  gallant  defenders  finding 
it  useless  to  resist  such  an  overwhelming  force,  abandoned  the  vessel, 
and  she  was  then  safely  set  on  fire  by  the  British. 

The  kingdom  of  Portugal  was  neutral,  or  professed  to  be  so,  in 

the  war  between  the  United  States  and  Great  Britain,  and  Fayal 

was  a  neutral  port.     Any  violation  of  the  neutrality  of  the  port,  by 

either  of  the  belligerents,  was  a  breach  of  the  law  of  nations.     The 

property  of  belligerents   when   within   the  neutral  jurisdiction  is 

inviolable.     It  is  not  lawful  to  make  neutral  territory  the  scene  of 

hostility,  or  to  attack  an  enemy  while  within  it ;  and  if  the  enemy 

be  attacked,  or  any  capture  made  under  neutral  protection,  the 

neutral  is  bound  to  redress  the  injury  and  effect   restitution. — 1 

Kent.  Com.,  117  ;  Vattel,  B.  3,  ch.  7,  §  132.     In  the  case  of  the 

Twee  Gebroeders,  3  Rob.,  136,  Sir  William  Scott  says,  that  no  use 

of  a  neutral  territory  for  the  purposes  of  war  is  to  be  permitted. 

"  Such  an  act  as  this,"  he  says,  "  that  a  ship  should  station  herself 

on  neutral  territory,  and  send  out  her  boats  on  hostile  enterprises, 

is  an  act  of  hostility  much  too  immediate  to  be  permitted.' 

That  there  was  a  violation  of  the  neutrality  of  the  port  of  Fayal 
by  the  one  party  or  the  other  is  indisputable.    If  the  party  attacked 


170  BRIG   GENERAL   ARMSTRONG. 

merely  exercised  the  right  of  self-defence,  that  cannot  be  a  cause  of 
complaint.  It  is  a  question  of  fact,  to  be  determined  upon  an 
examination  of  the  evidence,  which  party  violated  the  rights  of  the 
neutral  by  attacking  the  other.  Did  the  American  brig,  with  her 
seven  guns  and  ninety  men,  commit  the  folly  of  attacking  the  boats 
of  the  British  squadron,  reinforced  as  their  crews  might  almost 
instantly  have  been  by  many  hundreds  of  men,  or  did  the  British 
commander,  seeing  the  brig  lying,  as  he  imagined,  helpless 
within  his  grasp,  determine  to  attack  and  carry  her  at  all  events  ; 
and  did  he  pursue  the  course  which  any  officer  would  have  adopted 
if  bis  object  were  to  capture  an  enemy's  vessel  ?  This,  of  itself, 
would,  according  to  Sir  William  Scott,  have  been  a  violation  of 
neutrality.  "  Suppose,"  he  says,  "  that  even  if  a  direct  hostile  use 
should  be  required  to,bring  it  within  the  prohibition  of  the  law  of 
nations,  nobody  will  say  that  the  very  act  of  sending  out  boats  to 
effect  a  capture  is  not  in  itself  an  act  directly  hostile."  Chancellor 
Kent  says,  "  no  measure  is  to  be  taken  that  will  lead  to  immediate 
violence." — 1  Kent  Comm.,  118.  Upon  this  point  the  law  is  clear 
and  indisputable. 

The  first  question  that  presents  itself  is  a  question  of  fact,  and 
that  is,  whether,  in  this  transaction,  the  British  or  the  Americans 
were  the  aggressors.  More  than  forty-one  years  have  elapsed  since 
the  affair  happened.  We  are  not,  however,  forced  to  depend  upon 
the  testimony  of  witnesses  given  for  the  first  time  after  so  long  a 
period,  and  for  the  credit  of  which,  time,  and  the  failure  of  memory, 
might  properly  require  us  to  make  some  deduction.  We  have  the 
statements  of  those  who  were  actors  in  the  transaction,  made  at  the 
time  of  its  occurrence,  and  with  every  opportunity  of  knowing  the  truth. 
It  is  agreed  by  the  connsel  on  both  sides,  that  the  facts  and  the  law 
are  now  both  before  ns,  and  the  various  questions  in  the  case  have 
been  argued  with  a  skill  and  ability  that  leave  nothing  to  be 
desired.  We  shall  endeavor  to  examine  the  evidence,  irrespective 
of  the  consideration  that  the  United  States  and  Great  Britain  were 
then  at  war,  and  of  any  national  feeling  that  might  be  excited  by 


DECISION   OF  JUDGE  GILCHRI8T.  171 

the  sanguinary  conflict  that  took  place  in  the  harbor  of  Fayal.  We 
shall  examine,  in  the  first  place,  the  testimony  of  the  witnesses,  both 
American  and  English,  who  were  actors  iu  the  transaction. 

On  the  27th  day  of  September,  1814,  Samuel  G.  Reid,  the  cap- 
tain  of  the  Armstrong  ;  Frederick  A.  Worth,  the  first  lieutenant ; 
Robert  Johnson,  third  lieutenant  ;  Benjamin  Starks,  sailing-mas- 
ter ;  John  Brosnoham,  surgeon  ;  Robert  E.  Allen,  captain  of 
marines  ;  Thomas  Parsons,  James  Davis,  Eliphalet  Sheffield,  and 
Peter  Tyson,  prize  masters  of  the  brig,  made  oath  before  Mr. 
Dabney,  the  American  consul  for  the  Azores,  to  a-  declaration  and 
protest,  the  material  parts  of  which  are  as  follows  :  "  That  he  (Reid) 
sailed  in  and  with  said  brig  from  the  port  of  New  York,  on  the 
ninth  day  of  September  last  past,  well,  found,  staunch,  and  strong, 
and  manned  with  ninety  officers  and  men  for  a  cruise  ;  that  nothing 
material  happened  on  the  passage  to  this  island,  until  the  twenty- 
sixth  instant,  when  she  cast  anchor  in  this  port,  soon  after  twelve 
o'clock  at  noon,  with  a  view  to  get  a  supply  of  fresh  water ;  that 
during  the  said  afternoon  his  crew  were  employed  in  taking  on  board 
water,  when  about  sunset  of  the  same  day,  the  British  brig  of  war, 
Carnation,  Captain  Bentham,  appeared  suddenly,  doubling  round 
the  northeast  point  of  this  port ;  she  was  immediately  followed  by  the 
British  ship  Rota,  of  thirty-eight  guns,  Captain  P.  Somerville  ;  and 
the  seventy-four  gun  phip  Plantagenet,  Captain  Robert  Lloyd  ; 
which  latter,  it  is  understood,  commanded  the  squadron.  They  all 
anchored  about  seven  o'clock,  P.  M.,  and  soon  after,  some  suspicious 
movements  on  their  part,  indicating  an  intention  to  violate  the  neu- 
trality of  the  port,  induced  Captain  Reid  to  order  his  brig  to  be 
warped  in  shore,  close  under  the  guns  of  the  castle  ;  that  in  the  act 
of  doing  so  four  boats  approached  his  vessel,  filled  with  armed  men. 
Captain  Reid  repeatedly  hailed  them,  and  warned  them  to  keep  off, 
which  they  disregarding,  he  ordered  his  men  to  fire  on  them,  which 
was  done,  and  killed  and  wounded  several  men.  The  boats  returned 
the  fire,  and  killed  one  man,  and  wounded  the  first  lieutenant ;  they 
then  fled  to  their  ships  and  prepared  for  a  second  and  more  formidar 


172  BRIG   GENERAL   ARMSTRONG. 

ble  attack.  The  American  brig,  in  the  meantime,  was  placed  with- 
in half  cable's  length  of  the  shore,  and  within  half  pistol  shot  of 
the  castle.  Soon  after  midnight,  twelve,  or  as  some  state,  fourteen 
boats,  supposed  to  contain  nearly  four  hundred  men,  with  small 
cannon,  swivels,  blunderbuses,  and  other  arms,  made  a  violent 
attack  on  the  said  brig,  when  a  severe  conflict  ensued,  which  lasted 
near  forty  minutes,  and  terminated  in  the  total  defeat  and  partial  des- 
truction of  the  boats,  with  an  immense  slaughter  on  the  part  of  the 
British.  The  loss  of  the  Americans  in  the  action  was  one  lieuten- 
ant and  one  seaman  killed  and  two  lieutenants  and  five  seamen 
wounded.  At  daybreak,  the  brig  Carnation  was  brought  close  in, 
and  began  a  heavy  cannonade  on  the  American  brig,  when  Captain 
Reid,  finding  further  resistance  unavailing,  abandoned  the  vessel,  after 
partially  destroying  her,  and  soon  after,  the  British  set  her  on  fire. 
The  said  Captain  Reid,  therefore,  desires  me  to  take  his  protest,  as 
he,  by  these  presents,  does  most  solemly  protest,  against  the  said 
Lloyd,  commander  of  the  said  squadron,  and  against  the  other  com- 
manders of  the  British  ships  engaged  in  this  infamous  attack  on  the 
said  vessel,  when  lying  in  a  neutral,  friendly  port ;  and  the  said 
Captain  Reid  also  protests  against  the  government  of  Portugal,  for 
their  inability  to  protect  and  defend  the  neutrality  of  this  their  port 
and  harbor  ;  as  also,  against  all  and  other  State  or  States,  person 
or  persons,  whom  it  now  doth  or  may  concern,  for  all  losses,  costs, 
and  damages  that  have  arisen,  or  may  arise  to  the  owners,  officers, 
and  crew  of  the  said  brig  General  Armstrong,  in  consequence  of  her 
destruction,  and  the  defeat  of  her  cruise,  in  the  manner  afore- 
said." 

It  will  be  perceived  that  Captain  Reid  and  his  officers  state  that 
some  suspicious  movements,  indicating  an  intention  to  violate  the 
neutrality  of  the  port,  induced  Captain  Reid  to  order  his  brig  to 
be  warped  in  shore,  close  under  the  guns  of  the  castle  ;  "  that  in  the 
act  of  doing  so,  four  boats  approached  his  vessel  filled  with 
armed  men.  Captain  Reid  repeatedly  hailed  them,  and  warned 
them  to  keep  off,  which  they  disregarding,  he  ordered  his  men  to 


DECISION   OF  JUDGE  GILCHEIST.  173 

fire  on  them,  which  was  done,  and  killed  and  wounded  several  men. 
The  boats  returned  the  fire,  and  killed  one  man  and  wounded  the 
first  lieutenant." 

Here  ten  witnesses,  upon  whose  veracity  no  imputation  has  been 
cast,  and  who  had  the  means  of  observation,  give  an  account  of  a 
transaction  which  happened  under  their  own  eyes,  and  in  which  they 
took  a  part. 

On  the  other  side  is  the  deposition  of  Lieutenant  Robert  Fausset, 
sworn  to  on  the  21th  of  September,  1814,  before  the  British  consul 
at  Fayal,  who  states  that,  "  on  Monday,  the  26th  instant,  about 
eight  o'clock  in  the  evening,  he  was  ordered  to  go  in  the  pinnace 
or  guard-boat,  unarmed,  on  board  his  Majesty's  brig  Carnation,  to 
know  what  armed  vessel  was  at  anchor  in  the  bay  ;  when  Captain 
Bentham,  of  said  brig,  ordered  him  to  inquire  of  said  vessel ;  which, 
by  information,  was  said  to  be  a  privateer.  "When  said  boat  came 
near  the  privateer,  '  they  hailed  to  say  the  Americans,'  [which 
probably  should  be,  "the  Americans  hailed,"]  and  desired  the 
English  boat  to  keep  off,  or  they  would  fire  into  her  ;  upon  which, 
Mr.  Fausset  ordered  his  men  to  back  astern,  and  with  a  boat-hook 
was  in  the  act  of  so  doing,  when  the  Americans,  in  the  most  wan- 
ton manner,  fired  into  the  said  English  boat,  killed  two  and 
wounded  seven,  some  of  them  mortally  ;  and  this,  notwithstanding 
said  Fausset  frequently  called  out  not  to  murder  them,  that  they 
struck  and  called  for  quarters.  Said  Fausset  solemnly  declared 
that  no  resistance  of  any  kind  was  made,  nor  conld  they  do  it,  not 
having  any  arms,  nor,  of  course,  sent  to  attack  said  vessel.  Also 
several  Portuguese  boats,  at  the  time  of  said  unprecedented  attack, 
were  going  ashore,  which,  it  seems,  were  said  to  be  armed." 

This  deposition  is  said,  in  the  letter  of  Count  Tojal  to  Mr.  Hop- 
kins, of  September  29th,  1849,  to  be  "  confirmed  under  oath  by  the 
master  and  one  seaman  of  that  barge." 

The  contradictions  are,  that  the  protest  says  the  boats  were 
armed,  while  Fausset  says  they  were  unarmed  ;  the  protest  says  the 
fire  was  returned,  while  Fausset  says  they  made  no  resistance  ;  the 


174:  BRIG   GENKBAL   ABM6TEONG. 

protest  says  four  boats  approached  the  brig,  while  Fausset  says  he 
approached  with  the  pinnace  only  ;  the  protest  says  that  the  boats 
disregarded  the  warning  of  Captain  Reid  to  keep  off,  and  that  then 
he  fired  ;  Fausset  says  that  upon  being  ordered  to  keep  off,  he 
ordered  his  men  to  back  astern,  and  was  in  the  act  of  doing  so 
when  the  Americans  fired.  Upon  all  these  matters,  there  is  the 
testimony  of  ten  witnesses  from  the  brig,  against  three  from  the 
boat ;  and,  of  course,  the  weight  of  evidence  is  decidedly  in  favor 
of  the  Americans,  admitting  all  the  witnesses  to  have  been  equally 
honest,  and  to  have  possessed  equal  opportunities  for  knowing  the 
truth. 

Now,  upon  this  evidence,  derived  as  it  is  from  the  actors  in  the 
transaction,  who  are  the  very  best  sources  of  information,  no  intelli- 
gent jury  could  doubt  for  a  moment  that  the  statements  in  the  pro- 
test were  proved.  They  would  find  the  facts  to  be,  as  we  do,  that 
four  armed  boats  approached  the  brig  ;  that  they  were  hailed  and 
ordered  to  keep  off  or  they  would  be  fired  into  ;  that  they  dis- 
regarded the  warning  5  that  the  Americans  then  fired  and  killed 
some  of  their  men  ;  that  they  returned  the  fire,  and  killed  one  man 
and  wounded  the  first  lieutenant.  These  facts  we  find  to  be  proved 
by  the  evidence. 

But  there  are  some  statements  in  Fausset's  deposition,  which,  to 
say  the  least,  are  singular,  and  which  cast  some  doubt  upon  the 
entire  correctness  of  his  story.  It  appears  from  his  deposition  that 
the  British  knew  that  the  brig  was  an  "  armed  vessel,"  and,  "  by 
information,  was  said  to  be  a  privateer."  He  says  that  "  he  was 
ordered  to  go  in  the  pinnace  or  guard-boat,  unarmed,"  to  the  Car- 
nation, to  know  what  vessel  it  was  ;  and  the  captain  ordered  him 
to  inquire  of  the  brig.  Now,  it  is  singular,  that  in  the  evening,  in 
a  time  of  war,  the  commodore  of  a  British  squadron  should  be  so 
particular  as  to  order  the  boat  to  be  unarmed,  and  still  more  singu- 
lar that  Captain  Bentham  should,  at  such  a  time,  order  an  unarmed 
boat  to  approach  a  vessel  which  he  knew  to  be  armed,  and  supposed 
to  be  a  privateer,  and  probably  an  American  privateer.  It  was 


DECISION   OF   JUDGE   GILCIIfclST.  175 

i 

not  by  sending  out  unarmed  boats,  under  such  circumstances,  that 
British  naval  officers  attained  for  their  country,  and  so  long  exer* 
cised,  the  sovereignty  of  the  eeas  ;  and  the  British  officers  of  forty 
years  ago,  were  not  trained  in  a  school  that  would  tolerate  such 
negligence.  It  is  singular,  also,  that  Fausset,  who  was  sent  to 
inquire  "  what  armed  vessel  was  at  anchor,"  did  not  hail  the  brig  at 
all  ;  but,  instead  of  lying  off  at  a  proper  distance  and  hailing  the 
brig,  he  was  so  near,  when  the  Americans  hailed  him,  that  he  says 
he  backed  his  boat  astern  with  a  boat-hook !  If  he  went  there  in 
his  unsuspecting  simplicity  merely  to  procure  information,  was  it 
necessary  for  him,  in  that  quiet  bay,  and  that  moonlight  night,  to 
run  his  boat  directly  against  the  vessel's  side  ?  Could  he  not  have 
laid  off  a  hundred  feet  from  the  brig,  too  far  to  board  her,  but  near 
enough  to  get  an  answer  to  his  question  ?  His  story  is  entirely 
inconsistent  with  the  position  that  he  desired  only  to  know  what 
vessel  she  was,  and  strongly  confirms  the  assertion  in  the  protest, 
both  that  Captain  Reid's  warning  was  disregarded,  and  that  the 
boat  returned  the  fire.  It  is  difficult  to  understand  the  purpose  of 
Fausset's  allusion  to  the  Portuguese  boats,  which,  "  at  the  time  of 
the  attack,  were  going  ashore,  which,  it  seems,  were  said  to  be 
armed,"  unless  it  be  to  intimate  that  Captain  Reid  mistook  Portu- 
guese armed  boats  going  ashore  for  English  armed  boats  about  to 
attack  his  vessel.  The  Portuguese  boats  had  nothing  to  do  with  the 
affair  ;  this  is  the  only  allusion  to  them,  and  the  fact  of  their 
presence  in  the  bay  is  wholly  immaterial.  It  may  be  added  that 
Fausset  says  more  than  that  the  boat  was  unarmed,  from  which  it 
might  be  inferred  that  it  was  unarmed  for  an  assault  merely  ;  for 
he  says  that  "  no  resistance  of  any  kind  was  made,  nor  could  they 
do  it,  not  having  any  arms."  He  thus  makes  the  condition  of  hia 
boat  so  extremely  defenceless,  that  his  story  fails  to  carry  convic- 
tion with  it. 

But  it  is  said  the  Americans  fired  the  first  shot,  and  were,  conse- 
quently, the  aggressors.  That  they  fired  the  first  shot  is  clear,  but 
the  consequence  does  not  follow  that  by  so  doing  they  were  the 


176  BRIG   GENERAL  ARMSTRONG. 

aggressors.  Sir  William  Scott  says,  3  Rob.  136,  "  that  a  ship 
should  station  herself  on  neutral  territory,  and  send  out  her  boats 
on  hostile  enterprises,  is  an  act  of  hostility  much  too  immediate  to 
be  permitted."  That  the  British  did  send  out  their  boats  on  a 
hostile  enterprise,  is,  we  think,  too  clear  to  admit  of  a  doubt. 
What,  then,  was  Captain  Reid  to  do,  in  the  face  of  the  moral  cer- 
tainty that  the  British  were  determined  to  capture  his  vessel  ? 
Was  he  to  permit  them  to  come  on  board  ;  to  surrender  the  brave 
men  who  look  to  him  for  an  example,  to  be  carried  to  the  prison  at 
Dartmoor,  or  to  be  compelled  to  serve  against  their  countrymen  in 
an  English  frigate  ?  Was  he  not  rather  to  obey  the  dictate  alike 
of  common  sense  and  military  honor,  that  in  doubtful  emergencies 
it  is  safer  and  nobler  to  fight  than  to  retreat  ;  and,  beyond  all  this, 
had  he  not  a  right,  upon  every  principle  that  should  animate  a  com- 
mander, having  done  all  that  prudence  and  discretion  could  ask  for, 
to  strike  one  blow  in  defence  of  his  ship  ?  We  have  entirely  mis- 
taken the  extent  of  the  right  of  self-defence,  if  both  law  and  reason 
did  not  justify  him  in  firing  upon  the  English  boats. 

But,  even  in  the  absence  of  direct  evidence,  the  presumption  that 
the  boats  were  armed,  and  that  the  intention  was  hostile,  is  extreme- 
ly strong.  We  were  at  war  with  England.  When  the  British 
squadron  came  into  the  port  and  discovered  the  American  brig,  it 
was  well  understood  that  all  the  vessels  present  were  ships  of  war. 
It  is  absurd  to  say  that  these  four  boats  were  sent  merely  to  recon- 
noitre the  brig.  Such  a  force  was  entirely  unnecessary  for  that  pur- 
pose. Such  a  thing  was  never  heard  of  as  that,  in  the  evening,  in 
time  of  war,  a  naval  commander  would  approach  a  vessel  which  he 
did  not  know  to  be  friendly,  with  four  boats  filled  with  unarmed 
men.  And  even  if  Fausset's  statement  be  assumed  to  be  correct, 
and  one  boat  only  approached  the  brig,  it  is  extremely  improbable 
that,  if  his  boat  were  unarmed,  and  his  intentions  were  friendly,  he 
would,  without  hailing  the  brig,  have  come  sufficiently  near  to  her 
to  reach  her  with  a  boat-hook,  when  it  was  just  as  easy  to  ascer- 
tain what  vessel  she  was  without  coming  so  near  as  to  excite  sus- 


«          DECISION   OF  JUDGE   GILCHEI8T.  177 

piclon.  Especially  would  he  have  been  cantious  not  to  come  too 
near,  when  as  the  protest  states,  "  Captain  Reid  repeatedly  hailed 
them  and  warned  them  to  keep  off.  It  is  also  worthy  of  remark 
that  Fausset's  deposition,  made  on  the  27th  of  September,  1814, 
was  not  produced  until  thirty-five  years  afterwards,  when  it  first 
made  its  appearance,  on  the  29th  of  September,  1849,  in  the  letter  of 
Count  Tojal  to  Mr.  Hopkins.  It  is  singular,  too,  that  a  new  and 
entirely  different  version  of  the  transaction  is  given  in  the  letter  of 
Senor  De  Castro  to  Mr.  Barrow,  of  the  3d  of  August,  1843,  in 
which  he  says,  "  it  is  affirmed,  on  the  part  of  Great  Britain,  that 
they  (the  boats)  only  carried  inoffensive  men,  who  were  going 
ashore  from  their  ships  on  duty,  and  that  they  casually  met  the 
American  brig  when  she  was  preparing  to  leave  the  port  of  Fayal." 
It  is  enough  to  say  of  this  statement  that  it  directly  contradicts 
Fausset's  deposition,  and  that  both  cannot  be  true. 

In  addition  to  the  positive  evidence  and  the  presumptions,  there 
are  also  the  contemporary  declarations  of  the  official  persons  at  the 
island. 

Mr.  Dabney,  the  American  consul  at  Fayal,  in  his  official  note  to 
the  governor  of  the  Azores,  dated  at  nine  o'clock  in  the  evening  of 
the  26th  of  September,  1814,  says  :  "  In  violation  of  the  neutrality, 
etc.,  the  ships-of-war  of  his  Britannic  Majesty,  now  lying  in  this 
port,  lately  ordered  four  or  five  armed  boats  to  surprise  and  carry 
off  the  American  armed  schooner  General  Armstrong.  *  *  * 
The  boats  were  repulsed,  but  a  new  and  more  formidable  attack  is 
now  feared,"  etc.  On  the  28th  of  September,  1814,  the  governor  of 
the  Azores,  Elias  Jose  Ribeiro,  states  in  his  dispatch  to  his  govern- 
ment as  follows  :  "  We  are  now,  for  the  first  time,  made  witnesses 
to  a  horrible  and  bloody  combat,  occasioned  by  the  madness,  pride, 
and  arrogance  of  an  insolent  British  officer,  who  would  not  respect 
the  neutrality  maintained  by  Portugal  in  the  existing  contest  be- 
tween his  Britannic  Majesty  and  the  "United  States  of  America." 

He  also  says  :  "  I  learned  that  a  boat  had  been  sent  from  the 
British  ships-of-war  to  examine  the  prrvateeer,  and  on  its  return 

13 


178  BEIG   GENERAL   ARMSTRONG. 

three  others  had  been  sent  armed,  and  that  the  captain  of  the  priva- 
teer not  wishing  to  allow  them  to  come  on  board  of  his  vessel,  a  fire 
was  begun  on  both  sides." 

The  governor  then  states  that  he  desired  a  conference  with  the 
British  commander,  that  he  "  might  dissuade  him,  if  he  were  a 
reasonable  man,  from  continuing  the  hostilities  begun  so  insolently, 
and  repeated,  to  the  scandalous  contempt  of  the  law  of  nations." 

He  further  gays  that  he  conceives  the  British  commander  "  was 
aware  of  the  great  evil  done  by  his  hostile  expeditions  in  a  port  not 
only  neutral,  but,  moreover,  belonging  to  an  old  friend  and  ally  of 
his  nation  ;"  and  that  he  wishes  to  show  him  his  "  resentment  on 
account  of  the  insults  committed  by  him  ;"  nor  did  he  consider  his 
invitation  to  visit  his  ship  "  either  proper  or  decorous." 

The  British  commander,  in  answer  to  a  request  by  the  governor, 
that  he  would  respect  the  neutrality  of  the  port,  states,  on  the  26th 
of  September,  "  that  one  of  the  boats  of  his  Britannic  Majesty's 
ship  under  my  command  was,  without  the  slightest  provocation, 
fired  on  by  the  American  schooner  General  Armstrong,  in  conse- 
quence of  which  two  men  were  killed  and  seven  were  wounded  ;  and 
that  the  neutrality  of  the  port,  which  I  had  determined  to  respect, 
has  been  thereby  violated.  In  consequence  of  this  outrage,  I  am 
determined  to  take  possession  of  that  vessel."  To  this  the  governor 
replied  :  "  I  must,  however,  assure  you,  sir,  that  from  the  accounts 
which  I  have  received,  it  is  certain  that  the  British  boats  were  the 
first  to  attack  the  American  schooner." 

It  appears,  also,  from  the  diplomatic  correspondence,  that  the 
United  States  always  asserted,  and  that  Portugal  for  a  long  time 
admitted,  that  the  British  were  the  aggressors,  and  that  there  was 
a  just  claim  against  Portugal. 

In  the  letter  of  the  Marquis  d'Aguiar,  the  Minister  of  Foreign 
Affairs,  to  Lord  Strangford,  the  British  minister,  of  December  22d, 
1814  ,  he  speaks  of  "  the  outrageous  manner  in  which  that  comman- 
der violated  the  neutrality  *  *  by  audaciously  attacking  the 
American  privateer,"  and  of  "  the  base  attempt  of  the  British  com- 


DECISION  OF  JUDGE  GILCHEI8T.  179 

mander,  at  the  time  he  commenced  the  unprovoked  attack  on  the 
American  privateer,  to  attribute  those  violent  measures  to  the 
breaking  the  neutrality  on  the  part  of  the  Americans  in  the  first 
instance." 

He  states,  also,  that  the  Prince  Regent  had  "  directed  the  minis- 
ter at  London  *  *  to  require  satisfaction  and  indemnification 
not  only  for  his  subjects,  but  for  the  American  privateer,  whose 
security  was  guaranteed  by  the  safeguard  of  a  neutral  port." 

Mr.  Sumter,  the  American  minister  at  Rio,  in  his  letter  of  Janu- 
ary 1,  1815,  to  the  Marquis  d'Aguiar,  speaks  of  separation  to  the 
Prince  Regent  of  Portugal,  for  so  "rude  and  degrading  an  attack 
apon  his  sovereign  authority." 

In  this  letter  to  Mr.  Sumter  the  Marquis  speaks  of  "  the  manifest 
violation  of  his  territory  (by  the  British)  in  the  infringement  of  its 
neutrality." 

In  Mr.  Monroe's  tetter,  of  the  3d  of  January,  1815,  to  Mr. 
Sumter,  he  says  :  "  The  growing  frequency  of  similar  outrages  on 
the  part  of  Great  Britain  renders  it  more  than  ever  necessary  for 
the  government  of  the  United  States  to  exact  from  nations  in 
amity  with  them  a  rigid  fulfillment  of  all  the  obligations  which  a 
neutral  character  imposes." 

On  the  14th  of  March,  1818,  Mr.  Adams,  in  a  letter  to  the 
Portuguese  minister  at  Washington,  said  :  "  It  is  hoped  your 
government  will,  without  further  delay,  grant  to  the  sufferers  by 
that  transaction  the  full  indemnity  to  which  they  are  by  the  laws 
of  nations  entitled." 

In  the  letter  of  Mr.  Dickens,  the  acting  Secretary  of  State,  of 
the  20th  of  May,  1835,  to  Mr.  Kavanagh,  the  American  charge* 
at  Lisbon,  he  says  :  "  The  Portuguese  authorities  at  that  place 
having  failed  to  afford  to  this  vessel  the  protection  to  which  she  was 
entitled  in  a  friendly  port,  which  she  had  entered  as  an  asylum, 
the  government  is  unquestionably  bound  by  the  law  of  nations  to 
make  good  to  the  sufferers  all  the  damages  sustained  in  consequence 
of  the  neglect  of  so  obvious  and  acknowledged  a  duty." 


180  BRIO   GENERAL   ARMSTRONG. 

Mr.  Kavanagh  states  to  Mr.  Forsyth,  from  Lisbon,  on  the  30th 
of  January,  1836  :  "  It  appears  that  the  British  commander 
alleged  at  the  time,  that  the  crew  of  the  General  Armstrong  had 
provoked  the  first  attack  by  firing  into  his  boats  5  but  tho  protest 
made  and  signed  on  the  27th  of  September,  1814,  by  Captain  Reid 
and  all  his  officers,  and  corroborating  circumstances,  disprove  this 
allegation."  He  repeats  his  demand  for  indemnity  in  his  letter  of 
the  17th  of  February,  1837,  to  the  Portuguese  Minister  of  Foreign 
Affairs. 

In  his  dispatch  to  Mr.  Forsytb,  of  the  18th  of  March,  1837,  he 
states  that  he  had  had  an  interview  with  the  minister,  who  "  spoke 
of  the  claim  as  one  which  at  present  could  not  be  considered  admis- 
sible ;"  and  who  said  that  "  the  Portuguese  force  at  Fayal  wag 
altogether  incompetent  to  protect  the  privateer  against  the  assail- 
ants." 

On  the  15th  of  January,  1842,  Mr.  Webster  wrote  to  Mr.  Bar- 
row concerning  the  claim  ;  "  Its  justness,  I  believe,  has  never  been 
denied."  And  Mr  Barrow  makes  the  same  statement  in  his  letter 
of  May  25th,  1842,  to  the  Portuguese  Minister  of  Foreign  Affairs, 
Mr.  Webster,  in  his  letter  to  Mr.  Barrow,  of  the  18th  of  August, 
1842,  speaking  of  this  claim  and  that  of  James  Hall,  says  :  "Both 
these  claims  are  regarded  as  just  by  this  government,  and  will  not 
be  relinquished  under  the  objections  heretofore  made  to  them  by  the 
Portuguese  gorernmeut,  which  are  entirely  unsatisfactory." 

Mr.  Barrow,  in  his  letter  of  February  20th,  1843,  to  Mr.  Web- 
ster, says  :  "  The  pretexts  for  the  delay  in  the  two  former  cases 
(the  General  Armstrong  and  James  Hall)  are  of  a  very  frivolous 
•character,  and  such  will  continue  to  be  given,  I  am  convinced,  until 
a  very  decided  tone  is  assumed  by  our  government."  On  the  20th 
of  March,  1843,  he  writes  :  "  There  has  been  from  the  first  a  mani- 
fest disposition,  I  might  say  determination,  on  the  part  of  the  Por- 
tuguese government  ******* 
to  avoid  the  liability  to  which  they  are  subject  by  the  law  of  nations 
TO  the  case  of  the  General  Armstrong." 


DECISION    OF  JUDGE   GILCHRI8T.  181 

Such  are  the  contemporary  declarations  of  witnesses  who  saw  the 
transaction  ;  the  indignant  remonstrance  of  the  governor  of  the 
Azores  ;  the  admissions  of  the  Portuguese  government  of  the  exis- 
tence of  a  claim  on  our  part,  contained  in  their  demand  for  an 
indemnity  from  England,  on  account  of  the  loss  of  the  brig,  and  the 
repeated  assertions  of  our  government  of  a  violation  of  the  neu- 
trality by  the  British.  Until  the  4th  of  August,  1843,  there  had 
been  no  denial,  but  an  admission  of  the  justice  of  this  claim  upon 
them.  But  on  that  day  the  Portuguese  Minister,  in  a  letter  to  Mr. 
Barrow,  says  :  "  The  accounts  all  agree  that  the  American  brig, 
under  the  pretext  that  four  boats  from  the  said  British  vessel  were 
approaching  her,  fired  upon  them,  killing  some  of  the  men  and 
wounding  others.  *  *  *  It  is,  however,  an  undeniable  fact 
that  the  first  shot  came  from  the  American  brig,  thus  evidently  con- 
stituting her  the  aggressor,  and  a  violator  of  the  neutrality  of  the  port 
of  a  friendly  nation." 

Now  the  Portuguese  Minister  must  be  presumed  to  have  read 
the  evidence  on  the  subject  concerning  which  he  thought  fit  to  write 
a  letter,  and  his  most  extraordinary  declaration  that  all  the  accounts 
agreed  that  the  American  brig  was  the  aggressor,  must  have  been 
made  in  the  face  of  the  letter  of  the  governor  of  the  Azores,  of  the 
27th  of  September,  1814,  that  it  was  "  certain  that  the  British  boats 
were  the  first  to  attack  the  American  schooner  ;"  and  of  his  other 
expressions  of  indignation  at  the  conduct  of  the  British.  Whatever 
it  arose  from,  whether  from  an  inability  to  appreciate  the  evidence, 
a  disposition  to  procrastinate,  or  an  unwillingness  to  offend  the 
British  government,  its  incorrectness  is  manifest.  It  may  be 
remarked,  that  among  the  published  documents  are  to  be  found 
allusions  to  the  influence  of  the  British  minister  in  hindering  the 
payment  of  this  claim  by  Portugal.  It  is  singular,  indeed,  that  the 
Portuguese  government  should  not  have  discovered  that  the  evidence 
proved  the  Americans  to  have  been  the  aggressors  until  twenty-nine 
years  had  elapsed  since  the  affair,  and  until  the  production  of  Fans 
get's  deposition,  which  had  slumbered  ia  obscurity  during  that  period 


182  BRIG   GENERAL   ARMSTRONG. 

That  the  British  government  felt  an  interest  in  the  matter,  appears 
from  Mr.  Clayton's  speech  in  the  Senate,  on  the  26th  of  January, 
1855.  He  says  that  the  British  minister  "  desired  to  confer  with 
me,  on  one  occasion,  in  regard  to  the  matter,  but  I  declined  any 
conference  with  him  on  the  subject.  I  though  the  British  govern- 
ment had  no  right  to  interfere." 

The  governor  of  Fayal  made  no  complaint  that  the  Americans  had 
violated  the  neutrality  of  the  port.  That  discovery,  as  has  been 
stated,  remained  to  be  made  by  the  Portuguese  minister,  in  1843. 
The  governor  did,  however,  complain  of  Captain  Lloyd,  and  remon- 
strated against  his  proceedings  ;  and  even  the  minister,  in  his  letter  of 
August  3, 1843,  says,  that  "  the  government  of  his  Britannic  Majesty, 
appreciating  the  rashness  with  which  his  officers  acted  in  a  neutral 
port  against  said  brig,  had  no  hesitation  in  apologizing  to  the  Por- 
tuguese government."  This  statement,  however,  was  denied  by  the 
British  government,  as  appears  from  the  letter  of  Count  Tojal  to 
Mr.  Clay,  of  the  15th  of  May,  1850.  It  does  not  appear  to  be 
necessary  to  settle  the  question  of  veracity  between  them. 

Considering  it,  then,  as  proved,  that  the  British  were  the  aggress- 
ors, the  question  arises,  whether  it  was  the  duty  of  Portugal, 
according  to  the  law  of  nations,  to  make  pecuniary  compensation 
for  the  damages  sustained  by  the  injured  party. 

Upon  this  point  the  opinion  of  the  government  of  the  United 
States,  as  expressed  through  the  various  Secretaries  of  State,  is 
entitled  to  much  weight.  That  Portugal  was  bound  to  pay  the 
damages  sustained,  is  asserted  by  Mr.  Monroe,  Mr.  Adams,  Mr. 
Forsytb,  Mr.  Upshur,  Mr.  Webster,  and  Mr.  Clayton.  Mr.  Forsyth, 
in  his  letter  of  September  21,  1836,  instructs  Mr.  Kavanagh  to 
"  demand  from  the  Portuguese  authorities,  the  highest  amount  of 
damages  which  in  your  judgment  a  prudent  and  conscientious  man 
would  feel  himself  justified  in  asking,  were  he  prosecuting  his  own 
claim."  The  same  instructions  are  given  to  Mr.  Clay,  in  Mr.  Clay- 
ton's letter  of  March  8,  1850. 

It  is  doing  the  eminent  men  who  have  occupied  the  responsible 


DECISION   OF  JUDGE    GILCHBIST.  183 

position  of  Secretary  of  State,  great  injustice  to  assert  that  when 
they  alleged  that  Portugal  was  liable  in  damages,  they  did  not  ex- 
press their  honest  convictions,  but  condescended  to  the  position  of 
an  advocate.  They  had  no  temptation  to  say  what  they  did  not 
believe.  The  claim  was  not  made  a  party  question,  nor  did  it  have 
any  connection  with  party  politics.  There  was  no  call  upon  them 
to. hazard  their  reputation  as  statesmen  and  jurists,  upon  a  position 
which  they  did  not  believe  to  be  tenable. 

But  the  case  of  Portugal  is  attempted  to  be  put  on  the  ground 
that  she  was  unable  to  protect  her  neutrality. 

To  this  position  there  are  two  answers.  In  Count  Tojal's  letter 
of  March  9,  1850,  to  Mr.  Clay,  he  says  that,  "  no  neutral  is  obliged 
to  give  pecuniary  indemnification  for  damages  and  material  losses 
that  may  have  been  caused  in  its  ports  by  one  belligerent  to  another, 
once  it  can  be  shown  that  it  has  used  all  the  means  at  its  disposal 
to  give  protection." 

The  answer  to  this  is  thus  strongly  put  by  Mr  Clay,  in  his  letter 
to  Count  Tojal,  of  March,  15,  1850.  He  says  :  "What  were  the 
means  in  her  power  ?  She  had  the  physical  power  of  more  than  one 
hundred  regular  soldiers,  some  artillery,  a  fort,  the  power  of  the 
population  of  Payal,  about  thirty  American  seamen,  who  request- 
ed to  be  allowed  to  defend  their  brethren,  great  advantage  of  posi- 
tion, and  the  immense  moral  power  of  right  against  wrong  ;  these 
were  the  means  she  had.  Did  she  use  all  or  any  of  them  to  pro- 
tect and  defend  the  privateer  ?  Confessedly  she  did  not  ;  she  even 
went  beyond  mere  failure  to  defend  or  protect,  when  she  prevented 
the  American  seamen  from  rendering  whatever  assistance  was  in 
their  power.  And  if  she  did  not  use  all  these  means,  is  it  not  clear 
from  his  excellency's  own  argument,  that  she  is  bound  to  indem- 
.  nify  ?" 

The  whole  tenor  of  the  dispatch  of  the  governor  of  the  Azores,  of 
the  28th  of  September,  1814,  shows  that  he  used  no  means  what- 
ever with  the  British  commander  but  expostulation.  Although 
indignant  at  the  outrage  upon  the  sovereignty  of  Portugal,  the  dis- 


184  BEIG  GENERAL  ARMSTRONG. 

patch  needs  only  a  careful  perusal  to  make  it  apparent  that  the 
governor  was  paralyzed  by  the  position  in  which  he  stood,  and  that 
he  had  no  firmness.  He  seems  to  take  credit  to  himself  for  refusing 
to  consent  that  the  American  seamen  might  aid  in  defending  the 
brig,  for  taking  away  from  the  Americans,  as  they  came  ashore, 
their  swords  and  pistols,  and  for  the  energetic  feat  of  ordering  the 
standard  not  to  be  hoisted  over  the  castle  the  next  morning,  to  show 
his  resentment  at  the  conduct  of  the  British.  He  mentions  also  his 
decided  act,  in  seizing  two  American  seamen,  who,  during  a  funeral, 
"  gave  shouts  of  joy  on  account  of  the  fight  and  retreat  in  which 
these  officers  lost  their  lives."  All  these  might  have  been  very  bold 
and  gallant  acts,  but  unfortunately  for  him,  his  own  government 
did  not  approve  of  his  conduct.  The  Marquis  d'Aguiar,  the  Por- 
tuguese Minister  of  Foreign  Affairs,  in  his  letter  to  Lord  Strangford, 
of  the  22d  of*  December,  1814,  says,  that  if  it  were  not  for  the  idea 
that  he  desired  to  protect  the  inhabitants  from  the  ravages  which 
the  British  commander  would  not  have  failed  to  inflict,  "  the  censur- 
able moderation  of  the  governor  during  these  outrages  would  have 
induced  his  royal  highness  to  have  immediately  caused  a  process  to 
have  been  instituted  for  the  punishment  of  that  officer."  The  ques- 
tion is  not  wheth-T  Portugal  was  a  stronger  or  a  weaker  nation  than 
Great  Britain.  It  is  simply  whether  at  Fayal,  and  under  the  ex- 
isting circumstances,  the  governor  did  what  his  duty  required  of  him 
as  an  officer  of  a  neutral  nation  ;  and  his  government  answered 
that  question  by  saying  that  he  did  not  do  his  duty.  With  these 
facts  and  admissions,  it  is  almost  idle  to  say  that  Portugal  was  not 
bound  to  make  indemnity,  because  she  was  weak.  Bynkershoeck 
says  :  "  If  it  be  the  duty  of  the  sovereign  to  use  his  utmost  endea- 
vors to  effect  that  purpose,  it  follows  that  he  must  do  it  at  his  own 
expense.  Nay,  by  going  to  war,  if  other  means  are  not  sufficient. 
Such  is  the  law  which  is  observed  among  all  nations." — Bynker- 
shoeck's  Law  of  War,  by  Duponceau,  p.  60. 

But  admitting,  for  the  sake  of  argument,  that  the  governor  of  the 
Azores  used  all  the  means  in  his  power,  and  was  unable  to  resist 


DECISION   OF   JUDGE   GILCHEIST.  185 

the  British  force,  the  other  answer  to  the  position  is,  that  the  law 
of  nations  did  not  relieve  her  from  the  obligation  to  make  pecuniary 
compensation. 

Now,  if  Portugal  was  unable  to  protect  her  neutrality,  that  was 
her  misfortune.  Chancellor  Kent  says  :  "  If  the  enemy  be  attacked, 
or  any  capture  made  under  neutral  protection,  the  neutral  is  bound 
to  redress  the  injury  and  effect  restitution." — 1  Kent,  122.  That  is, 
if  the  enemy  be  attacked,  the  neutral  is  bound  to  redress  the  in- 
jury ;  if  a  capture  be  made,  the  neutral  is  bound  to  effect  restitu- 
tion. The  question  here  does  not  relate  to  restitution  of  property 
captured,  but  to  the  redress  of  an  injury  from  a  hostile  attack. 
How  is  an  injury,  sustained  by  reason  of  an  attack  upon  the  pro- 
perty of  an  enemy's  citizen,  to  be  redressed,  but  by  paying  for  the 
injury  done  ?  The  position  is  stated  absolutely,  and  without  any 
provisoes  or  limitations.  Can  it  be  that  a  neutral  is  bound  to  restore 
a  ship  captured  in  its  waters  ;  but  if  the  ship  be  captured,  and  then 
sunk  by  the  enemy,  no  duty  whatever  rests  upon  the  neutral  ?  The 
same  reason  which  requires  a  neutral  to  restore  a  captured  vessel, 
calls  on  it  also  to  make  compensation  where  a  vessel  is  destroyed. 
The  same  principle  lies  at  the  foundation  of  either  duty.  The  posi- 
tion that  a  neutral  is  bound  to  make  restitution,  but  not  compensa- 
tion, may  thus  be  stated  :  If  the  neutral  sees  a  ship  captured  in  its 
waters,  and  is  able  to  effect  restitution,  it  is  bound  to  do  so.  But 
if  restitution  cannot  be  made  from  whatever  cause,  then  the  neutral 
is  to  remonstrate  to  the  belligerent  who  has  done  the  wrong,  and 
who  knows  that  the  neutral  has  done  all  it  could  ;  and  if  the  belli- 
gerent refuses  to  do  anything  in  the  matter,  still  the  law  of  nations  is 
satisfied,  and  the  affair  is  settled.  Such  was  the  course  adopted  in 
the  present  case.  The  vessel  was  destroyed  by  the  British,  and  the 
neutral  remonstrated,  consequently,  the  neutral  was  absolved  from 
all  obligation  to  make  compensation.  This  distinction  between  res- 
titution and  reparation,  although  inappreciable,  by  the  unassisted 
reason,  may  exist  in  virtue  of  some  mysterious  afflatus,  which  is  sup- 
posed to  inspire  the  councils  of  diplomatists.  It  is  enough  to  say 


186  BRIG   GENERAL   ARMSTRONG. 

that  it  deprives  the  law  of  nations  on  this  point  of  all  vitality, 
and  reduces  it  to  a  solemn  absurdity.  When  a  ship  is  destroyed, 
this  distinction  releases  the  neutral  from  the  obligation  to  do 
what  is  physically  impossible,  but  it  absolves  the  neutral  from  the 
duty  of  doing  the  only  thing  ill  its  power,  that  is,  to  effect  restitu- 
tion, 

It  is  unnecessary  to  take  the  position  that  a  neutral  is  bound 
always  to  have  in  all  its  ports  a  force  sufficient  to  resist  any  attack 
that  might  be  made.  This  would  be  unreasonable  ;  for  even  Eng- 
land, with  her  powerful  navy,  could  not  accomplish  it.  But  it  is 
equally  unreasonable  to  say  that  because  a  neutral  did  not  happen 
to  have  at  any  given  place  a  sufficient  force  to  protect  its  neutrality, 
therefore  it  is  absolved  from  all  duty,  happen  what  may.  That  Por- 
tugal, relatively  to  England,  was  a  weak  nation,  may  be  admitted. 
But  she  assumed  to  be  neutral  in  the  war  between  England  and 
America.  As  she  claimed  the  rights,  so  she  was  subject  to  the 
obligations  of  neutrality.  If  she  was  not  strong  enough  to  cause 
herself  to  be  respected  as  neutral,  she  should  not  have  placed  her- 
self in  that  position.  She  chose  her  part  in  the  great  republic  of 
the  world,  and  stood  in  the  relation  to  other  nations  upon  a  com- 
mon ground  with  them.  It  is  said  by  Vattel,  Prel.  ch.  §  18,  "  since 
men  are  naturally  equal,  and  a  perfect  equality  prevails  in  their 
rights  and  obligations,  as  equally  proceeding  from  nature,  nations 
composed  of  men,  and  considered  as  so  many  free  persons,  living 
together  in  the  state  of  nature,  are  naturally  equal,  and  inherit 
from  nature  the  same  obligations  and  rights.  Power  or  weakness 
does  not  in  this  respect  produce  any  difference.  A  dwarf  is  as  much 
a  man  as  a  giant ;  a  small  republic  is  no  less  a  sovereign  state  than 
the  most  powerful  kingdom."  This  is  a  clear  and  precise  statement 
by  an  eminent  writer  of  the  reciprocal  rights  and  obligations  of  na- 
tions, whatever  may  be  their  relative  power.  As  weakness  does  not 
deprive  a  nation  of  its  rights,  it  does  not  release  her  from  the  obli- 
gations which  she  owes  to  other  nations.  A  nation  may  be  weak 
as  regards  armies  and  fleets,  but  she  may  be  wealthy.  It  may  be  a 


DECISION   OF   JUDGE   GILCHBI8T.  187 

part  of  her  policy  to  avoid  the  expenditure  of  her  resources  in  mili- 
tary and  naval  preparation.  She  may  choose  to  lavish  her  revenue 
upon  the  empty  forms  and  pageantry  of  government,  disregarding 
and  careless  of  the  advance  and  happiness  of  her  people.  But  it 
would  be  strange  indeed,  if  the  course  she  might  see  fit  to  adopt  of 
her  own  free  will,  should  be  received  as  an  excuse  for  her  non- 
performance  of  the  duties  which  she  would  exact  towards  her- 
self from  nations  whose  government  might  be  better  administered, 
and  whose  revenues  might  be  more  carefully  expended. 

In  Molloy's  Treatise  De  Jure  Maritimo,  B.  1,  Ch.  1,  sec.  16,  a 
case  is  stated  which  affords  an  exact  precedent  for  the  one  before 
us.  After  mentioning  several  cases  where  hostile  encounters  were 
forbidden  in  neutral  ports,  he  says  :  "  But  they  of  Hamburgh 
were  not  so  kind  to  the  English  when  the  Dutch  fleet  fell  into  their 
road,  where  rid  at  the  same  time  some  English  merchantmen,  whom 
they  assaulted,  took,  burnt,  and  spoiled  ;  for  which  action,  and  not 
preserving  the  peace  of  their  port,  they  were,  by  the  law  of  nations, 
adjudged  to  answer  the  damage,  and  I  think  have  paid  most  or  all 
of  it  since." 

It  is  not  to  be  expected  that  many  precedents  are  to  be  found 
exactly  resembling  the  present  case,  which  was  so  peculiar  in  its 
circumstances.  During  her  long  war  with  France,  England,  by  her 
powerful  navy,  was  enabled  to  set  at  dcflance  the  law  of  nations  in 
respect  to  neutrals  with  impunity  ;  but  the  case  cited  from  Molloy, 
shows  th»t  the  English  claimed  from  Hamburgh,  in  1665,  the  same 
compensation  in  damages  which  the  present  claimants  demanded 
from  Portugal.  It  is  unnecessary  for  us  to  pursue  the  investigation 
of  the  question  as  to  the  liability  of  Portugal  any  further.  We 
have  the  opinion  of  the  most  eminent  jurists  and  diplomatists  of  the 
United  States,  the  authority  of  Molloy,  and,  as  we  think  we  have 
shown,  the  intrinsic  propriety  and  reasonableness  of  the  position. 
We  have  found  nothing  in  the  books  which  deserves  to  be  weighed 
against  these  views.  Even  Flanders,  in  his  treatise  on  Maritime 
Law  (p.  45,)  although  he  states,  as  his  individual  opinion,  that  the 


188 


BRIO   GENERAL   ARMSTRONG. 


reasoning  which  m  aintains  the  obligations  of  the  neutral  to  answer 
damages,  seeing  to  him  to  be  inconclusive,  admits  that' it  is  held  by 
writers  on  the  law  of  nations  that  the  neutral  is  bound  to  redress 
the  loss  himself.  But  he  cites  no  authority  to  the  contrary,  and  he 
can  find  no  stronger  ground  on  which  to  found  his  opinion,  than  that 
the  neutral  is  a  host  extending  his  hospitality  to  a  belligerent  who 
comes  into  his  port.  But,  with  submission,  we  conceive  that  such  is 
not  the  relation  in  which  the  parties  stand  to  each  other.  A  nation 
which  assumes  to  be  neutral  has  certain  duties  which  she  is  compelled, 
by  the  law  of  nations,  to  perform.  It  is  said  by  Vattel,  book  3, 
ch.  7,  §  118  :  "A  neutral  nation  preserves  towards  both  the  belli- 
gerent powers  the  several  relations  which  nature  has  instituted  be- 
tween nations.  She  ought  to  show  herself  ready  to  render  them 
every  office  of  humanity  reciprocally  due  from  one  nation  to  another. 
She  ought,  in  everything  not  directly  relating  to  war,  to  give  them 
all  the  assistance  in  her  power,  and  of  which  they  may  stand  in 
need."  It  thus  appears  that  the  neutral  is  not  a  host  extending 
hospitality  ex  mera  gratia,  but  is  part  of  the  great  republic  of 
nations,  bound  to  render  offices  of  humanity.  The  parallel  of  this 
writer,  therefore,  fails,  and  his  opinion  must  fall  with  the  inaccurate 
figure  which  he  uses  to  illustrate  his  views. 

Our  opinion  is,  that  Portugal  was  bound,  by  the  law  of  nations, 
to  make  to  the  claimants  pecuniary  compensation. 
.  The  proposition  to  refer  this  case  to  an  arbitrator,  came  from  the 
Portuguese  government.  The  course  of  the  United  Sbates  had 
been  consistent  throughout.  We  had  always  maintained  that  we 
had  a  valid  claim  upon  Portugal  ;  that  the  facts  showed  that  the 
British  were  the  aggressors,  and  that,  by  the  law  of  nations,  Portu- 
gal was  bound  to  redress  the  injury  sustained  by  our  citizens.  The 
first  remark  on  the  subject  of  an  arbitration  we  have  found,  is  in 
Mr.  Claytons  letter  of  the  8th  of  March,  1850,  when  he  wrote  to 
Mr.  Clay,  the  American  charge*  d'affaires  at  Lisbon  :  "  In  regard  to 
a  reference  of  our  claims  to  an  arbitrator,  which  has  been  indicated, 
the  President  has  directed  me  to  say  that  no  such  course  will,  under 


DECISION   OF   JtTDGE   GILCHRI8T. 

the  circumstances,  receive  bis  sanction  ;  and  this  for  reasons  too 
'obvious  to  need  enumeration."  On  the  30th  of  April,  he  wrote  to 
the  Portuguese  minister  at  Washington,  that  the  matter  would  be 
referred  to  Congress,  "  should  the  Portuguese  government  persevere 
in  the  refusal  to  adjust  and  and  settle  what  are  believed  to  be  the 
incontrovertible  claims  of  American  citizens  upon  that  government,'' 
and  he  rejected  the  proposition  of  the  minister  to  submit  this  claim 
to  arbitration. 

The  treaty  between  the  ITnited  States  and  Portugal  was  conclu^ 
ded  on  the  26th  of  February,  1851.  The  first  article  provides  that 
Portugal  shall  pay  to  the  United  States  a  sum  equivalent  to  the  in- 
demnities claimed  for  several  American  citizens.  By  the  second 
article  it  is  agreed  that  the  parties,  "  not  being  able  to  come  to  an 
agreement  upon  the  question  of  public  law  involved  in  the  case  of 
the  American  privateer  brig  General  Armstrong,  that  the  claim 
presented  by  the  American  government,  in  behalf  of  the  captain, 
officers,  and  crew  of  the  said  privateer,  should  be  submitted  to  the 
arbitrament  of  a  sovereign,  potentate,  or  chief  of  some  nation  io 
amity  with  both  the  high  contrating  parties." 

In  relation  to  the  arbitration  we  may  remark,  that  in  whatever 
we  may  say  upon  the  subject,  we  do  not  mean  to  be  understood  as 
denying  the  right  of  the  government  of  the  "United  States,  acting 
for  the  whole  people,  to  submit  to  arbitration  any  controversy  with 
a  foreign  government,  in  which  public  interests  are  alone  involved. 
Nor  is  it  necessary  to  deny  the  power  of  the  United  States  to  sub* 
mit  to  arbitration  the  claim  of  one  of  its  own  citizens  upon  a  for- 
eign government  which  it  has  been  prosecuting,  in  such  a  way  as  to 
preclude  itself  from  again  pressing  that  claim  upon  such  foreign 
government,  or  insisting  upon  it  in  any  way  as  a  cause  of  war,  or  a 
matter  of  national  concern.  There  is  a  broad  distinction  between 
the  submission  of  a  case  involving  national  interests  exclusively, 
and  the  submission  of  a  case  relating  to  private  rights  alone,  where 
the  only  matter  of  public  concern  is  the  general  duty  of  a  govern- 
ment to  protect  its  citizens.  Where  a  case  of  the  latter  description 


190  SRtG   GENERAL  ARMSTRONG. 

is  submitted,  it  mast  be  done  with  a  due  regard  to  the  rights  of  the 
citizen.     If  his  rights  be  disregarded  and  sacrificed,  it  is  the  dictate 
alike  of  law,  common  sense,  and  justice,  that  the  government  by 
which  his  rights  have  been  sacrificed,  should  make  him  restitution. 
We  think  it  cannot  be  denied,  that  to  relieve  a  government  from 
liability  to  a  citizen  on  this  account,  it  should  appear  that  the  case  , 
was  one  proper  to  be  submitted  ;  that  he  had  an  opportunity  of  , 
being  heard  before  the  arbitrator  by  argument  and  proofs  ;  that  the 
award  was  certain,  definite,  and  within  the  submission  ;  and  that 
the  arbitrator  did  not  exceed  his  powers. 

In  the  first  place,  we  are  unable  to  perceive  what  good  and  suffi- 
cient reasons  there  were,  that  required  the  United  States  to  submit 
the  claims  of  their  citizens  upon  a  foreign  government  to  arbitra- 
tion. We  find  no  reasons  alleged  in  the  correspondence  that  led  to 
the  submission.  A  citizen  of  this  republic  is  entitled  to  ask  his 
government,  respectfully,  why  a  given  course  was  pursued  in  rela- 
tion to  his  private  rights.  The  government  holds  its  public  powers 
by  no  higher  tenure  than  the  citizen  possesses  his  private  rights. 
Public  powers  are  delegated,  and  private  rights  are  possessed,  by 
the  will  and  assent  of  the  people.  The  day  is  gone  by,  at  least  on 
this  side  the  Atlantic,  when  the  rights  and  interests  of  millions  can 
be  settled  definitely  by  diplomatists  in  secret  session,  and  when  no 
other  answer  to  a  complaint  is  condescended,  than  that  such  mat- 
ters are  mysteries  of  State,  into  which  even  the  party  aggrieved 
has  no  right  to  inquire.  We  intrust  our  public  interests  to  our 
public  officers,  in  the  confidence  that  they  will  discharge  their  duty. 
If  those  duties  are  neglected  or  mismanaged,  we  find  a  remedy  in 
the  ballot-box.  But  when  a  citizen  has  a  claim  upon  a  foreign 
government,  which,  from  the  nature  of  the  case,  as  he  is  powerless 
against  the  foreign  government,  can  only  be  redressed  through  the 
agency  of  his  own  government,  and  that  claim  is  sacrificed  by  his 
government,  he  has  no  remedy,  unless  his  government  will  indem- 
nify him.  He  may,  surely,  with  propriety,  ask  the  question,  why 
his  claim  was  submitted  ?  In  the  present  case,  that  the  British 


DECISION   OE   JUDGE   GILOHRI8T.  191 

were  the  aggressors  was  a  fact,  patent,  known  at  the  time  to 
hundreds  of  persons,  which  we  had  always  asserted  to  be  true,  and 
which  the  evidence  proves  to  be  true.  No  impartial  man  can 
investigate  the  evidence  and  reach  any  other  conclusion.  Not  only 
is  the  evidence  on  the  point  overwhelming,  but  such  has  always 
been  the  position  taken  by  the  United  States  from  1814  to  1841,  by 
every  administration,  every  Secretary  of  State,  every  American 
minister,  and,  until  the  year  1843,  admitted  to  be  true  by  the  Por- 
tuguese government  itself.  If,  as  Mr. Webster  wrote  to  Mr.  Barrow 
on  the  13th  of  January,  1842,  the  justice  of  this  claim  had  never 
been  denied,  why  did  that  eminent  man  consent  to  submit  it  to 
arbitration  ?  What  call  was  there  upon  him  to  put  it  out  of  the 
power  of  the  United  States  to  perform  that  first  and  most  sacred 
of  duties,  protection  of  the  rights  of  the  humblest  citizen.  A  party 
who  has  a  claim,  of  which  no  one  denies  the  justice,  is  a  most 
unfit  manager  of  his  business,  when  he  submits  it  to  arbitration, 
and  thereby  gives  the  arbitrator  a  discretionary  authority  to  allow 
or  reject  it  at  his  pleasure.  We  had  always  asserted  that  Portugal 
was  bound  by  the  law  of  nations  to  redress  this  injury;  and  there  is 
nothing  in  any  part  of  the  diplomatic  correspondence  on  our  part 
that  tends  to  show  that  we  ever  intended  to  recede  from  this  posi- 
tion. We  had  positively  asserted  that  both  the  law  and  the  facts 
were  with  us.  We  had  expressed  our  views  in  every  form.  We  had 
presented  a  firm,  but  temperate  statement.  We  had  resorted  to 
argument.  We  had,  finally,  asserted  our  fixed  determination  that 
the  injuries  of  our  citizens  must  be  redressed.  Such  being  our  posi- 
tion, the  inquiry  may  properly  be  made,  why  the  various  questions 
in  this  case,  involving  the  private  rights  of  American  citizens, 
should  be  exposed  to  the  hazard  of  being  loosely  and  partially  con- 
sidered by  an  European  sovereign  who,  to  say  the  least,  would  be 
as  likely  to  be  influenced  by  considerations  of  state  policy  as  by  a 
regard  to  individual  rights.  If  the  government  did  not  see  fit  to 
have  recourse  to  arms  to  enforce  the  claim,  they  might,  at  least, 
have  abstained  from  compromising  the  rights  of  the  claimants. 


192  BRIG  GENERAL  ARMSTRONG. 

But  when  the  government  were  convinced  that  the  facts  were  as  the 
claimants  alleged,  the  conclusion  of  law  followed  of  course.  The 
claimants  alleged  that  the  British  were  the  aggressors.  The  gov- 
ernment believed  that  such  was  the  case,  and  that  Portugal  was 
bound  to  pay  the  claim.  These  positions,  then,  being  distinctly 
taken,  it  may  safely  be  said,  that  if  this  was  a  proper  case  for  a 
submission,  no  case  ever  existed  that  would  justify  a  resort  to  hos- 
tilities, so  long  as  an  arbitrator  could  be  procured  to  determine  the 
controversy. 

But  whether  this  case  was,  iu  itself,  under  the  circumstances, 
proper  to  be  submitted  to  arbitration,  there  is  a  further  view  to  be 
taken  of  the  submission.  ,  %-< 

On  the  13th  day  of  April,  1850  (Doc.  53,  page  66),  Count 
Tojal  wrote  to  Mr.  Clay  that  the  Portuguese  government  "  will 
now  propose  to  refer  this  affair  to  the  decision  of  a  third  power." 
In  his  letter  of  July  6,  1850  (Doc.  53,  page  73),  Count  Tojal 
refers  to  several  claims  of  American  citizens  upon  Portugal.  A 
list  of  them  is  given,  with  the  amount  claimed  in  each.  They  are 
ten  in  number,  and  the  aggregate  amount  was  $233,327.  The 
amount  claimed  in  the  case  of  the  General  Armstrong  was  $131,600. 
The  others  amounted  to  $91,727.  Count  Tojal  then  says  :  "  The 
government  of  her  majesty,  animated  with  the  same  desire,  etc., 
yields  to  the  force  of  circumstances,  and  without  again  reverting  to 
the  justice  or  injustice  of  the  claims  presented  by  the  government 
of  the  United  States,  and  only  pro  bono  pads,  offers  to  pay  the  said 
mentioned  claims,  amounting  to  $91,727,  according  to  Mr.  Clay's 
account,  with  the  only  exception  of  that  relating  to  the  privateer 
General  Armstrong.  In  respect  to  this  claim  the  undersigned  can- 
not deviate  from  the  proposal  heretofore  made  to  Mr.  Clay,  that 
of  so  important  a  claim  being  submitted  to  the  decision  of  a  third 
power." 

It  is  to  be  noticed  that  the  justice  and  legality  of  the  claims, 
which  Count  Tojal  thus  offered  to  pay,  had  been  denied  as  strenu- 
ously aa  the  claim  relating  to  the  General  Armstrong.  Why  the 


DECISION   OF  JUDGE   GILCHRIBT.  193 

Portuguese  government  were  unwilling  to  pay  this  claim,  is  indicated 
by  the  following  extract  from  the  same  letter  of  Count  Tojal : 
"  Her  majesty's  government,  besides  the  arguments  contained  in  the 
notes  formerly  addressed  to  the  government  of  the  "United  States, 
finds  its  judgment,  and  the  manner  of  weighing  the  question  of  the 
privateer  General  Armstrong,  strengthened  with  the  opinion  of  her 
Britannic  majesty's  government,  which  has  always  deemed  this  claim 
of  the  government  of  the  United  States  unjust."  Why,  again,  it 
was  necessary  for  Portugal  to  ask  the  opinion  of  England,  is  shown 
by  another  extract  from  Count  Tojal's  letter,  in  which  he  says  : 
"  The  subsisting  relations  between  her  most  faithful  majesty's  gov- 
ernment and  that  of  her  Britannic  majesty,  oblige  the  undersigned 
to  communicate  to  the  British  government  all  that  has  taken  place." 
But  whatever  influences  operated  upon  the  Portuguese  govern- 
ment, and  it  is  not  difficult  to  appreciate  them,  the  proposition  made 
by  Count  Tojal  was  not  divisible.  It  was  complete  in  itself.  It 
was  not  an  absolute  proposal  to  pay  the  other  claims,  but  to  pay 
them,  and  to  submit  this  to  arbitration.  As  Portugal  had,  up 
to  the  time  of  the  proposition,  invariably  denied  the  justice  of 
the  other  claims,  and  as  she  said  she  offered  to  pay  them  and  submit 
this,  only  pro  bono  pads,  we  could  not  have  called  on  her  to  pay 
the  other  claims,  unless  we  agreed  to  submit  this  to  arbitration.  It 
would  have  been  unreasonable  in  the  extreme  if  our  government  had 
called  upon  Portugal  to  pay  the  other  claims  without  agreeing  to 
submit  this.  But  that  the  proposal  was  one  and  indivisible  is,  we 
think,  too  clear  to  admit  of  question,  or  to  need  argument  in  its 
support.  When,  therefore,  our  government  decided  to  accept  the 
proposal,  as  it  did,  by  Mr.  Webster's  letter  of  the  23d  of  August, 
1850,  it  assumed  the  right,  which,  ia  the  present  case,  we  are  not 
disposed  to  deny  or  inquire  into,  of  exposing  the  claim  of  the  own- 
ers of  the  General  Armstrong  to  the  chances  of  an  arbitration,  for 
the  purpose  of  procuring  thereby  the  settlement  of  the  remaining 
claims  upon  Portugal,  and  of  putting  an  end  to  all  embarrassing 
negotiations  with  that  power. 

14 


194:  BRIO   GENERAL   ARMSTRONG. 

The  case  does  not  call  upon  us  to  deuy  the  right  of  the  United 
States  to  submit  to  arbitration  the  claim  of  a  citizen  upon  a  foreign 
government  without  his  assent,  or  even  against  his  protest,  and  the 
question  need  not  be  investigated.  Of  course,  his  assent  would 
estop  him  afterwards  from  objecting  that  a  submission  was  entered 
into.  As  there  is  evidence  upon  this  point,  we  have  examined  it 
for  the  purpose  of  showing  the  relative  position  of  the  claimants  and 
the  United  States. 

On  the  5th  of  September,  1850,  Mr.  Reid,  the  agent  for  the 
claimants,  wrote  to  Mr.  Webster  :  "  I  perceive  it  is  proposed  to 
refer  the  claim  of  the  owners  of  the  brig  General  Armstrong  to  the 
King  of  Sweden  for  arbitration.  I  hope  the  Department  of  State 
will  make  no  final  arrangements  in  this  case,  under  the  present  cir- 
cumstances, and  I  desire  that  it  may  be  left  open  until  I  can  have  a 
conference  with  you  on  the  subject.  *  *  *  *  I  hope  no  steps 
will  be  taken  which  will  compromise  the  rights  of  the  claimants,  until 
I  can  have  the  pleasure  of  seeing  you."  To  this  letter  Mr.  Webster 
answered,  on  the  13th  of  September,  that  the  proposition  of  Count 
Tojal  to  pay  the  several  claims  preferred  by  the  American  govern- 
ment against  that  of  Portugal,  with  the  exception  alone  of  that  of 
the  General  Armstrong,  which  was  to  be  referred  to  the  King  of 
Sweden  etc.,  had  already  been  accepted  by  the  government. 

We  look  in  vain  here  for  any  evidence  of  assent  to  the  submission. 
When  Mr.  Reid  hears  that  it  is  proposed  to  submit  the  claim,  he 
hopes  that  the  matter  will  be  left  open  until  he  can  have  a  confer- 
ence with  Mr.  Webster,  and  that  no  steps  will  be  taken  that  will 
compromise  the  rights  of  the  claimants  until  he  can  see  him.  Do 
these  words  mean  the  very  reverse  of  what  they  express  ?  Does 
Mr  Reid  mean,  when  he  uses  this  language,  to  say  that  he  assents 
to  the  submission  ?  If  so,  language  was  given  us  to  disguise  our 
thoughts,  and  not  to  express  them.  But  not  only  does  he  not 
assent  to  the  submission,  'but  it  was  agreed  to  without  any  opportu- 
nity for  him  to  assent  or  dissent,  and  without  his  knowing  anything 
about  it  ;  for  Mr.  Webster  informs  him  that  the  proposal  of  Count 


DECISION   OF   JUDGE   GILCHRIST. 


195 


Tojal  had  already  beeii  accepted.  If  there  ever  were  a  plain  case 
of  dissent,  it  is  furnished  by  Mr.  Reid's  letter.  There  is  no  evidence 
of  his  acquiescence  in  the  submission,  for  all  he  did  was  to  request 
that  he  might  be  heard  before  the  arbitrator,  after  he  was  informed 
that  the  treaty  had  been  concluded. 

It  may  be  proper  to  notice,  in  this  connection,  a  position  taken  by 
the  solicitor,  that  a  claimant,  in  a  case  like  this,  is  conclusively 
bound  by  the  action  of  his  government.  In  the  instructions  to  Mr. 
Kavanagh,  of  the  21st  of  September,  1836,  Mr.  Forsyth  says  :  "  It 
is  well  understood  that  after  asking  the  interference  of  their  govern- 
ment to  procure  redress  for  the  injuries  they  supposed  themselves  to 
have  sustained,  the  parties  must  abide  by  such  settlements  as  that 
government  may  make."  This  proposition  cannot  be  correct  in  the 
broad  language  used.  No  individual  can  urge  his  claims  upon  a 
foreign  government  with  any  hope  of  success,  excepting  that  derived 
from  their  sense  of  justice.  A  private  person,  armed  with  no  power 
of  enforcing  his  rights,  and  unassisted  by  his  own  government,  can- 
not speak  in  sufficiently  impressive  tones  to  ensure  his  being  heard 
by  a  foreign  nation.  His  own  government,  in  the  discharge  of  that 
duty  of  protection  which  it  owes  to  its  citizens,  must  speak  for  him. 
"  If  any  complaint  is  to  be  made  on  the  part  of  the  captured,  it 
must  be  by  his  government  to  the  neutral  government  for  a  fraudu- 
lent or  unworthy  or  unnecessary  submission  to  a  violation  of  its 
territory."  1  Kent's  Com.,  121.  If  Mr.  Forsyth's  statement  be 
correct,  the  government  would  be  justified  in  making  use  of  and 
surrendering  the  claim  of  one  of  its  citizens  for  the  purpose  of  pro- 
curing the  payment  of  the  claim  of  another.  If,  by  saying  that 
"the  parties  must  abide  by  such  settlements  as  the  government  may 
make,"  it  be  meant  only  that  the  party,  after  such  settlement  has 
been  made,  cannot  enforce  his  claim  against  the  foreign  state, 
the  position  is  correct.  But  if  it  be  meant  that,  whatever  settle- 
ment the  government  of  the  claimant  may  make,  it  incurs  no  respon- 
sibility for  the  claim  of  its  own  citizens,  the  doctrine  cannot  be 
admitted.  In  the  case  of  the  Baron  De  Bock  vs.  Regina,  It  Eng. 


196  BEIG  GENERAL  ARMSTRONG. 

L.  &  Eq.  Rep.,  14,  Lard  St  Leonards,  the  Lord  Chancellor,  said  ; 
"  It  is  admitted  law  that  if  the  subject  of  a  country  be  spoliated  by 
a  foreign  government,  he  is  entitled  to  obtain  redress  from  the  for- 
eign government  through  the  means  of  his  own  government.  But 
if,  from  weakness,  timidity,  or  any  other  cause  on  the  part  of  his  own 
government,  no  redress  is  obtained  from  the  foreigner,  then  he  has  a 
claim  against  his  own  country.  Here  is  a  compromise  of  the  two 
governments  ;  the  question  is,  how  far  his  claim  is  affected  by  it." 
It  cannot  be  supposed,  however,  that  Mr.  Forsyth  intended  to  con- 
vey the  idea  that  whatever  course  the  government  might  pursue,  in 
no  event  would  it  be  liable  to  the  claimant.  Such  a  proposition 
would  be,  in  substance,  that  the  government  is  not  responsible  for 
wrong  ;  a  ground  which,  we  presume,  no  one  would  seriously  attempt 
to  maintain. 

Before  examining  the  objections  that  have  been  made  to  the 
award,  it  is  proper  to  consider  the  position  taken  by  the  claimants, 
that  they  were  not  permitted  to  be  heard  before  the  arbitrator. 

The  treaty  having  been  ratified  by  the  Senate  an  the  7th  of 
March,  1851,  on  the  19th  of  March  Mr.  Webster  wrote  his  letter 
of  instruction  to  Mr.  Hadduck,  who  had  succeeded  Mr.  Clay  as  our 
charge*  at  Portugal.  The  material  part  of  this  letter  refers  to  the 
third  article  of  the  treaty,  which  is  as  follows  ; 

"  So  soon  as  the  consent  of  the  sovereign,  potentate,  or  chief  of 
some  friendly  nation  who  shall  be  chosen  by  the  two  high  contract- 
ing parties,  shall  have  been  obtained  to  act  as  arbiter  in  the  afore- 
said case  of  the  privateer  brig  "  General  Armstrong,"  copies  of  all 
correspondence  which  has  passed,  in  reference  to  said  claim,  between 
the  two  governments,  shall  be  laid  before  the  arbiter,  to  whose 
decision  the  two  high  contracting  parties  hereby  bind  themselves  to 
submit." 

Mr.  Webster  directs  Mr.  Hadduck  "  to  compare  and  authenti- 
cate, jointly  with  the  Portuguese  government,  the  copies  therein 
specified.  You  will  understand,  of  course,  that  these  copies  are 
limited  to  such  communications  as  have  passed  between  the  Amer- 


DECISION   OF  JUDGE   QILCHRI8T.  197 

ican  legation  and  the  Portuguese  government  at  Lisbon,  and 
between  this  department  and  the  Portuguese  legation  in  Washing- 
ton." On  the  12th  of  July,  1851,  Mr.  Webster  wrote  to  Mr.  Had- 
dock, and  after  stating  the  instructions  contained  in  his  previous 
letter,  says  :  "  To  provide,  however,  against  an  omission  of  any 
important  part  of  the  earlier  portion  of  the  correspondence — I  mean 
that  which  passed  in  1814  and  1815,  in  Rio  Janeiro,  where  tin 
court  of  Portugal  at  that  time  resided,  and  which  it  could  not  have 
been  intended  to  exclude — I  transmit  to  you  herewith  a  printed 
copy  of  the  correspondence  as  communicated  to  Congress  on  the  15th 
December,  1845."  This  letter,  however,  reached  Mr.  Hadduck  too 
late,  as  the  treaty  had  been  signed  on  the  23d  of  June  previous. 
The  papers  omitted  where  the  whole  of  document  14  of  the  Senate, 
1st  session  29th  Congress,  covering  fifty-eight  pages.  It  is  said 
that  the  whole  of  this  document  is  contained  in  substance  in  the 
subsequent  correspondence.  One  letter,  however,  was  omitted, 
upon  which  much  stress  was  laid  in  the  argument  on  the  question  of 
fact,  as  to  the  party  who  made  the  first  aggression.  This  was  the 
letter  from  Mr.  Greaves,  the  British  consul,  dated  on  the  2tth  of 
September,  1814,  to  the  governor  of  the  Azores,  informing  him  that  if 
the  governor  should  permit  the  masts  to  be  taken  from  the  schooner, 
the  commander  of  the  squadron  would  regard  the  island  as  an 
enemy  of  his  Britannic  majesty,  and  would  treat  the  town  and 
castle  accordingly.  This  was  relied  upon  as  tending  to  prove  that 
Captain  Lloyd  desired  to  capture  the  brig  and  use  her  in  his  opera- 
tions against  this  country.  f  , 

But,  not  only  was  no  provision  made  for  laying  before  the  arbi- 
trator all  the  correspondence  which  might  throw  light  upon  the  case, 
but  the  claimants  were  refused  the  privilege  of  being  heard  before 
the  authority  which  was  to  decide  upon  their  rights.  Upon  the  tth 
of  July,  1851,  the  agent  of  the  claimants  filed,  at  the  Department 
of  State,  a  written  argument  and  statement  of  facts,  which  he 
requested  might  be  sent  to  our  minister,  that  he  might  submit  it  to 
the  arbitrator,  which  was  verbally  refused,  on  the  ground  that  the 


198  BRIG   GENERAL   ARMSTRONG. 

terms  of  the  treaty  precluded  it.  To  two  notes  to  the  Secretary  of 
State,  to  the  same  effect,  he  received  no  answer.  He  then  request- 
ed the  President  that  he  might  be  sent  to  France  with  the  papers 
and  documents,  that  he  might  present  his  case  through  Mr.  Rives  ; 
but  this  was  also  refused. 

It  may  well  be  asked  here,  why  was  the  case  so  submitted  that 
the  party  interested  could  not  be  heard  ?  If  the  United  States,  in 
the  plenitude  of  their  power,  see  fit  to  submit  the  claim  of  a  citizen 
to  arbitration  without  his  assent,  ought  they  not  to  make  the  most 
careful  and  ample  provision  that  he  shall  be  fully  and  fairly  heard, 
and  that  he  shall  have  all  reasonable  opportunity  to  lay  before  the 
arbitrator  the  evidence  on  which  he  relies  ?  An  award  made  with- 
out the  party  having  had  an  opportunity  to  be  heard,  rests  neither 
upon  law  nor  justice.  If  the  case  was  sufficiently  national  in  its 
bearings  to  be  submitted  to  the  arbitration  of  an  European  prince, 
it  was,  surely,  important  enough  to  deserve  a  careful  investigation 
into  the  facts,  and  the  parties,  whose  pecuniary  interests  were  invol- 
ved, were  the  very  persons,  of  all  others,  to  whom  to  intrust  such 
an  investigation. 

The  position  that  every  party  should  have  an  opportunity  to  be 
heard  before  the  tribunal  that  is  to  pass  judgment  on  his  rights,  needs 
no  labored  argument  to  support  it.  It  has  been  repeatedly  asserted 
by  the  most  eminent  jurists.  InRigden  vs.  Martin,  6  H.  &  Johns., 
403,  the  court  said  :  "  that  the  parties  ought  to  have  notice  of  the 
time  of  meeting,  is  a  position  so  strongly  supported  by  common  justice 
that  it  would  seem  not  to  require  the  aid  of  authorities.  Every 
man  ought  to  have  an  opportunity  afforded  him  to  be  heard  in 
defence  of  his  rights."  In  Falconer  vs.  Montgomery,  4  Dallas,  232, 
it  is  said  :  "  The  plainest  dictates  9f  natural  justice  must  prescribe 
to  every  tribunal  the  law  that '  no  man  shall  be  condemned  unheard.' 
It  is  not  merely  an  abstract  rule,  or  positive  right,  but  it  is  the 
result  of  long  experience  and  a  wise  attention  to  the  feelings  and 
dispositions  of  human  nature.  *  *  *  Besides,  there  is  scarcely 
a  piece  of  written  evidence,  or  a  sentence  of  oral  testimony,  that  is 


DECISION   OF   JUDGE   GILOHBI8T.  199 

not  susceptible  of  some  explanation,  or  exposed  to  some  contradic- 
tion ;  there  is  scarcely  an  argument  that  may  not  be  elucidated  so 
as  to  ensure  success,  or  controverted  so  as  to  prevent  it.  To  ex- 
clude the  party,  therefore,  from  the  opportunity  of  interposing  in 
any  of  these  modes  (which  the  most  candid  and  intelligent,  but  a 
disinterested  person,  may  easily  overlook)  is  not  only  a  privation  of 
his  right,  but  an  act  of  injustice  to  the  umpire,  whose  mind  might 
be  materially  influenced  by  such  an  interposition."  In  the  case  of 
Lutz  vs.  Linthicum,  8  Peters,  118,  Mr.  Justice  Story  said  : 
"  Without  question,  due  notice  should  be  given  to  the  parties  of  the 
time  and  place  of  hearing  the  cause  ;  and  if  the  award  was  made 
without  such  notice,  it  ought,  upon  the  plainest  principles  of  justice, 
to  be  set  aside."  In  Elmendorf  vs.  Harris,  23  Wend.,  628,  it  was 
laid  down  as  a  fundamental  rule  of  construction  in  reference  to  every 
transaction  in  the  nature  of  a  judicial  proceeding,  that  the  contract 
of  submission  necessarily  implies  that  the  arbitrator  is  not  author- 
ized or  empowered  to  decide  the  question  in  controversy,  without 
giving  the  parties  an  opportunity  to  be  heard  in  relation  thereto. 

Mr.  Webster's  construction  of  the  3d  article  of  the  treaty,  which 
provided  that  the  copies  of  the  correspondence  should  be  laid  before 
the  arbiter,  excluded  the  presentation  of  any  argument.  But  the 
article  contains  no  words  of  exclusion,  and  it  is  not  to  be  presumed 
that  the  arbiter  would  have  refused  to  consider  an  argument  for  the 
claimants.  The  government  refused  to  sanction,  in  any  manner,  the 
presentment  of  the  case  of  the  claimants  to  the  arbiter,  and  with- 
out such  sanction,  no  private  person  would  be  permitted  to  intervene, 
of  his  own  authority,  between  two  nations.  If  Mr.  Webster's  con- 
struction be  correct,  then  such  a  treaty,  in  violation  of  the  plainest 
principles  of  justice,  should  not  have  been  made.  If  his  construc- 
tion be  wrong,  then  the  agent  was  most  unjustifiably  hindered  by 
the  government  from  presenting  his  case.  Whatever  may  be  the 
true  construction  of  the  article,  the  claimants  have  suffered  a  wrong 
at  the  hands  of  the  government,  for  which  reparation  should  be 
made  them. 


200  BKIG   GKNKEAL   ARMSTRONG. 

We  come  now  to  the  consideration  of  the  award,  and  it  is  neces- 
sary, iu  the  first  place,  to  ascertain  the  matter  submitted  to  the  arbi- 
trator. 

The  second  article  of  the  treaty  is  as  follows  : 

"  The  high  contracting  parties  not  being  able  to  come  to  an  agree- 
ment upon  the  question  of  public  law  involved  in  the  case  of  the 
American  privateer  brig  General  Armstrong,  etc,  have  consented 
that  the  claim  presented  by  the  American  government,  etc.,  should 
be  submitted  to  the  arbitrament  of  a  sovereign,"  etc. 

The  claim,  then,  was  submitted,  because  the  parties  could  not  agree 
upon  the  question  of  law  ;  it  was  not  because  they  could  not  agree  up- 
on the  facts,  or  the  amount  of  the  claim.  Thus  the  matter  in  dispute  was 
the  simple  question  of  law.  As  that  question  should  be  determined,  so 
must  be  the  award  of  the  arbitrator.  But  that  question  was  not 
determined  at  all,  the  award  being  founded  solely  upon  the  facts.  If 
this  construction  of  the  submission  be  correct,  it  follows  that  the  award 
is  void  :  firstly,  because  it  does  not  settle  the  matter  in  dispute,  and 
the  matter  submitted  ;  and  secondly,  because  it  does  settle  the  question 
of  fact,  which  was  not  submitted,  and  thus  exceeds  the  submission. 

But  there  is  another  view  to  be  taken  of  the  submission.  Al- 
though the  question  of  law  was  that  about  which  the  parties 
were  unable  to  agree,  the  claim  was  submitted,  and  this  compre- 
hends both  the  question  of  law  and  the  question  of  fact.  Having 
found  the  question  of  fact  against  the  claimants,  it  is  urged  that 
this  decision,  involving  the  fact  tha,t  the  Americans  were  the  aggres- 
sors, is  conclusive  against  the  claimants.  Such  would  undoubtedly 
be  the  case  if  the  claimants  had  the  priviledge  of  being  heard,  by 
laying  before  the  arbitrator  their  argument  and  proofs.  But  it  is 
to  be  remembered,  that  in  this  case,  not  only  was  the  submission 
made  without  the  assent  of  the  claimants — not  only  were  they  denied 
all  opportunity  of  appearing  before  the  arbitrator — but  the  case, 
during  all  the  period  from  the  submission  to  the  award,  was  in  no 
condition  to  be  heard.  It  had  never  been  prepared  for  trial.  The 
claimants  had  done  all  that  was  necessary  for  their  immediate  pur- 


DECISION   OP   JUDGE   GILCHRIST.  201 

pose  :  they  had  presented  their  claim  to  their  own  government,  and 
had  requested  that  it  might  be  urged  upon  the  government  of  Portu- 
gal. Mr.  Webster  did  not  suppose  that  all  the  evidence  had  been 
famished  on  which  the  claimants  rested  their  case,  for  on  the  15th 
of  January,  1842,  he  wrote  to  Mr.  Barrow  :  "  If  the  inadmissibility 
of  the  claim  is  made  to  depend  upon  the  defect  of  evidence,  or 
upon  any  other  cause,  you  will  ascertain  precisely  what  further  evi- 
dence is  required  in  addition  to  that  which  has  already  been  com- 
municated by  Captain  Reid,  and  will  be  found  on  file  in  your  lega- 
tion." The  transaction  occured  in  the  harbor  of  Fayal,  near  to  the 
shore,  on  a  moonlight  evening,  and  in  the  presence  of  innumerable 
witnesses.  If  the  facts  were  to  be  contested,  the  claimants  should 
have  had  the  opportunity  of  procuring  the  testimony  of  those  who 
witnessed  the  affair,  and  of  placing  their  case  in  the  most  favora- 
ble light.  This  privilege  not  denied  to  the  humblest  suitor,  in  the 
most  pretty  controversy.  It  has  been  denied  to  these  claimants  by 
the  action  of  their  government.  They  are  remediless  as  to  Portu- 
gal, for  all  claim  is  barred  by  the  action  under  the  treaty.  Their 
just  rights  have  been  disregarded  and  sacrificed  by  the  United  States  ; 
and  the  question  then  arises,  whether  the  United  States  are  bound 
to  make  them  compensation. 

In  relation  to  this  point,  we  have  the  facts  that  the  British  were 
the  aggressors  ;  that  the  owners  of  the  brig  had  a  valid  claim  upon 
Portugal  for  indemnity  ;  that  the  claim  was  submitted  to  arbitra- 
tion by  virtue  of  the  power  of  the  United  States  to  do  so,  without 
the  assent  of  the  claimants  ;  that  the  treaty  was  so  worded  as,  by 
Mr.  Webster's  construction,  to  deprive  the  claimants  of  all  opportu- 
nity of  being  heard  in  any  manner  ;  that  the  United  States  refused 
to  sanction  their  application  to  be  heard  ;  that  they  were  not  heard  ; 
that  the  award  was  made  without  their  privity,  in  their  absence,  and 
in  violation  of  the  universal  principle  that  no  one  shall  be  condemned 
unheard  ;  and  that  they  were  entitled  to  be  heard  upon  every  prin- 
ciple of  private  justice,  public  law,  and  that  regard  to  equity  and 
fair  dealing,  without  which,  neither  a  nation  nor  an  individual  can 


202  BKIG   GENERAL   ARMSTRONG. 

ever  be  respected.  It  is  entirely  immaterial  whether  the  question 
submitted  was  one  of  law  or  of  fact.  Even  if  we  admit,  for  the  sake 
of  the  argument,  that  upon  the  evidence  now  before  us,  it  was  doubt- 
ful which  party  was  the  aggressor,  and  even  if  we  admit  in  the  same 
way  that  the  validity  of  the  claim  upon  Portugal  was  a  doubtful 
question,  that  does  not  at  all  affect  the  right  of  the  party  interested 
to  be  heard.  So  much  the  greater  call  was  there  upon  the  United 
States  to  provide  that  they  should  be  heard.  The  principles  of  jus- 
tice are  universal,  and  not  local.  They  are  as  binding  upon  the 
Emperor  of  the  French  as  upon  the  humblest  tribunal.  Every  step 
in  this  affair,  from  the  acceptance  of  the  proposal  by  Portugal  to 
submit  the  case,  to  the  ratification  of  the  treaty,  was  the  act  of  the 
United  States  alone.  The  award  having  been  made  against  the 
United  States,  they  are  answerable  to  the  claimants  for  the  loss  they 
have  sustained,  upon  the  principle  that  a  nation,  being  entitled  to 
the  allegiance  and  obedience  of  its  citizens,  is  solemnly  bound,  in 
return,  to  protect,  not  only  their  person,  but  their  property.  It  is 
said  by  Vattel  (ch.  2,  §  17)  :  "  If  a  nation  is  obliged  to  preserve 
itself,  it  is  no  less  obliged  carefully  to  preserve  all  its  members. 
The  nation  owes  this  to  itself,  since  the  loss  even  of  one  of  its  mem- 
bers weakens  it,  and  is  injurious  to  its  preservation.  It  owes  this 
also  to  its  members  in  particular,  in  consequence  of  the  very  act  of 
association  ;  for  those  who  compose  a  nation,  are  united  for  their 
defence  and  common  advantage  ;  and  none  can  justly  be  deprived 
of  this  union,  and  of  the  advantages  he  expects  to  derive  from  it, 
while  he,  on  his  side,  fulfills  the  conditions.  The  body  of  a  nation 
cannot  then  abandon  a  province,  a  town,  or  even  a  single  individual 
who  is  a  part  of  it,  unless  compelled  to  do  it  by  necessity,  or  indis- 
pensably obliged  to  it  by  the  strongest  reasons,  founded  on  the 
public  safety." 

It  is  on  this  duty  of  protection  that  the  duty  of  allegiance  depends. 
We  owe  allegiance  to  the  country  where  we  were  born,  where  we 
were  educated,  and  under  the  protection  of  whose  laws  we  live.  To 
it  we  owe  the  sacrifice  of  our  comfort,  our  property,  and  our  lives, 


DISSENTING   OPINION   OF  JUDGE  BLAOKFORD.  203 

when  the  occasion  requires  it.  And  it  is  from  the  existence  of  these 
comprehensive  duties  on  our  part,  that  the  reciprocal  duty  of  pro- 
tection arises.  Our  country  is  bound  to  protect  our  rights  as 
individuals  ;  and  if  this  protection  be  not  afforded  us,  she  is  bound  to 
render  us  such  an  equivalent  as  it  is  in  her  power  to  bestow.  Against 
another  nation  she  is  bouud  to  assert  our  claims,  for  she  alone  can 
meet  such  an  antagonist  on  equal  terms.  If  she  neglects  the  sacred 
duty  of  protecting  us  in  our  rights,  she  is  bound  to  make  us  compen- 
sation. These  principles  are  not  recent  discoveries.  They  are  as 
old  as  the  institution  of  civil  government.  Their  recognition  by  a 
state  is  the  surest  and  firmest  bond  by  which  the  citizen  is  attached 
to  his  government  and  his  country.  They  embody  the  same  idea 
expressed  by  the  Lord  Chancellor  in  the  case  of  the  Baron  de  Bode, 
to  which  we  have  referred,  that  "  if,  from  weakness,  timidity,  or  any 
other  cause,  on  the  part  of  his  own  government,  no  redress  is 
obtained  from  the  foreigner,  he  (the  citizen)  has  a  claim  against  his 
own  country."  In  the  case  of  Farnam  vs.  Brooks,  9  Pick.,  p.  239, 
Parker,  C.  J.,  intimates  an  opinion'  that  there  is  an  obligation  on  the 
government  of  the  United  States  to  procure  redress  for  its  citizens, 
or  itself  to  reimburse  them.  • 

In  relation  to  the  question  of  damages,  no  evidence  has  been  laid 
before  us.  The  sum  claimed  of  Portugal  is  mentioned  in  the  corres- 
pondence, but  no  proof  of  the  damages  sustained  appears  in  the  case. 
Upon  this  point  testimony  must  be  taken. 


DISSENTING    OPINION    DELIVERED    BY   JUDGE    BLIACKFORD. 

I  dissent  from  the  judgment  of  the  court  in  this  case. 

This  is  a  claim  against  the  United  States  for  one  hundred  and 
thirty-one  thousand,  six  hundred  dollars.  The  claim  is  presented  by 
Samuel  C.  Reid,  on  behalf  of  himself  and  of  the  owners,  officers, 
and  crew  of  the  American  privateer  General  Armstrong. 


204  BRIG    GENERAL   ARMSTRONG. 

This  privateer,  on  the  26th  and  27th  days  of  September,  1814, 
during  the  last  war  between  the  United  States  and  Great  Britain, 
was  destroyed  by  certain  British  ships  of  war  in  a  harbor  of  the 
island  of  Fayal.  The  kingdom  of  Portugal,  to  which  Fayal 
belonged,  was,  at  the  time,  a  neutral  nation  ;  and,  consequently, 
the  combat  of  the  belligerents,  in  which  the  privateer  was  destroyed, 
was  a  violation  of  the  laws  of  nations.  The  commencement  of  this 
conflict  was  between  the  privateer  and  a  boat  or  boats  of  the 
British  ships,  in  which  first  encounter  there  were  a  few  persons 
killed  and  some  wounded.  But  the  governor  of  the  island  knew 
nothing  of  these  first  acts  of  hostility  uutil  after  they  had  occurred. 
As  soon  as  he  was  informed  of  their  occurrence,  he  used  every  exer- 
tion in  bis  power,  by  peaceable  measures,  to  prevent  any  further 
hostile  acts  by  the  British,  but  without  success.  He  did  not,  to  be 
sure,  resort  to  force ;  and  it  is  evident,  that  owing  to  the  want  of 
means,  he  could  not,  by  force,  have  prevented  the  disaster  which 
ensued. 

On  said  27th  of  September,  1814,  Samuel  C.  Reid,  the  captain 
of  the  privateer,  entered  his  written  protest,  in  which  he  charged 
the  British  vessels  with  being  the  aggressors.  This  protest  is 
sworn  to  by  the  captain,  the  first  and  third  lieutenants,  the  sailing 
master,  surgeon,  captain  of  marines,  and  four  prize  masters  of  the 
brig.  There  are,  also,  as  to  the  aggression,  the  statements  of  the 
American  consul  and  of  the  governor  of  Fayal.  On  the  other 
hand,  a  lieutenant  of  the  British  navy,  and  commander  of  a  barge, 
engaged  in  the  conflict,  together  with  the  master  and  one  of  the 
seamen  of  the  barge,  made  oath,  on  said  27th  of  September,  1814, 
before  the  British  consul  at  Fayal,  showing,  if  their  statements  be 
true,  the  privateer  to  have  been  the  aggressor. 

On  the  19th  of  December,  1814,  Jenkins  &  Havens,  as  agents 
of  those  concerned  in  the  privateer,  requested  the  government  of 
the  United  States  to  demand  of  Portugal  compensation  for  the 
damage  sustained  by  the  loss  of  the  vessel.  • 

It  appears  by  a  letter  of  the  Portuguese  minister  of  the  22d  of 


DISSENTING   OPINION  OF  JFOGE  fcLACKFOKIX  205 

December,  1814,  that  the  Prince  Regent  of  Portugal,  upon  infor- 
mation of  the  governor  of  Fayal,  had  directed  his  minister  in 
London  to  require  of  the  British  government  "  satisfaction  and 
indemnification,  not  only  for  his  subjects,  but  for  the  American 
privateer,  whose  security  was  guaranteed  by  the  safeguard  of  a 
neutral  port*" 

On  the  day  after  the  date  of  that  letter,  the  Portuguese  minister 
enclosed  to  Mr.  Sumter,  the  American  minister  at  Rio  Janeiro,  a 
copy  of  the  advices  received  from  the  governor  of  Fayal  respecting 
the  destruction  of  the  privateer,  with  a  communication,  saying  : 
"  His  royal  highness,  however,  flatters  himself  that  the  citizens 
of  the  United  States  will  not  have  reason  to  complain  of  the  Portu- 
guese governor  in  that  conflict,  having  used  his  utmost  power  to 
prevent  the  evil  that  occurred.  The  British  government  refused 
the  indemnification  demanded  by  Portugal  for  the  loss  of  the  priva- 
teer, alleging,  according  to  Count  Tojal,  that  the  conduct  of  Com- 
inodore  Lloyd  was  fully  justified  as  a  mere  act  of  retaliation,  pro- 
voked by  the  hostilities  previously  commenced  by  Captain  Reid. 

On  the  3d  of  January,  1815,  Mr.  Monroe,  Secretary  of  State, 
instructed  Mr.  Sumter,  the  American  minister  aforesaid^  "  to  bring 
all  the  circumstances  of  the  transaction  distinctly  to  the  view  of  the 
Portuguese  government,  and  to  state  the  claim  which  the  injured 
party  had  to  immediate  indemnification."  In  December  following, 
Mr.  Sumter  wrote  to  Mr.  Monroe  as  follows  ;  "  I  have  not  had  the 
good  fortune  to  receive  any  letter  from  your  department  of  a  later 
date  than  that  of  the  3d  of  January  last,  which  related  solely  to 
the  reclamation  to  be  made  in  favor  of  the  General  Armstrong  pri- 
vateer destroyed  by  the  British  at  Fayal.  You  will  have  seen  by 
my  note  of  the  first  of  January,  that  I  had  already  attended  to 
that  affair.  Others  of  a  similar  kind  have  been  represented  since. 
The  only  answer  I  have  yet  obtained  is,  that  inquiry  has  been 
ordered  in  the  other  cases  ;  and  that  a  demand  of  satisfaction  had 
been  made  in  the  case  of  the  Armstrong."  In  1818,  Mr.  Adams, 
Secretary  of  State,  wrote  to  the  Portuguese  minister  relative  to  the 


206  BRIG  GENERAL  ARMSTRONG. 

claim,  concluding  his  note  as  follows  :  "  It  is  hoped  your  govern- 
ment will,  without  further  delay,  grant  to  the  sufferers  by  that 
transaction,  the  full  indemnity  to  which  they  are,  by  the  laws  of 
nations,  entitled."  In  1837,  Mr.  Kavanagh,  our  charge*  d'affaires 
at  Lisbon,  in  compliance  with  his  instructions,  demanded  of  Portu- 
gal satisfaction  for  said  injury. 

lu  1841,  Captain  Reid,  as  agent  aforesaid,  wrote  to  Mr.  Web- 
ster j  Secretary  of  State,  informing  him  that  the  President  had  been 
applied  to  "  concerning  their  claims  upon  the  Portuguese  govern- 
ment, for  the  entire  loss  of  that  vessel,"  and  urging  Mr.  Webster 
to  assist  the  claimants.  Mr.  Webste^  accordingly,  in  January, 

1842,  instructed  Mr.  Barrow,  .our  charge  d'affaires  at  Lisbon,  to 
present  the  claim  to  the  Minister  of  Foreign  Affairs,  which  instruc- 
tion was  complied  with  in  May,  1842.     The  Portuguese  minister,  in 

1843,  refused  the  demand,  alleging  that  the  privateer  was  the 
aggressor,  and  that  the  Portuguese   authorities  had  used  every 
means  in  their  power  to  prevent  the  deed.     In  1844,  the  Secretary 
of  State,  Mr.  Upshur,  wrote  to  Samuel  C.  Reid,  Jr.,  as  follows  : 

DEPARTMENT  OF  STATE, 

Washington,  January  10,  1844. 

SIR  :  At  the  repeated  instance  of  yourself  and  others,  interested  in  the 
case  of  the  privateer  General  Armstrong,  this  government  has  again  and 
again  instructed  its  representatives  at  Lisbon  to  bring  the  claim  to  the  notice 
of  the  government  of  Portugal.  This  has  been  done,  and  every  argument  has 
been  employed  to  induce  Portugal  to  acknowledge  the  justice  of  the  claim, 
and  to  make  due  reparation.  All  these  efforts,  of  which  you  are  well  aware, 
have  proved  unavailing,  and  the  Department  of  State  is  unwilling,  under  all 
the  circumstances,  to  renew  the  application,  having  every  reason  to  believe 
that  all  future  applications  will  prove  as  fruitless  as  those  that  are  past. 
Argument  and  importunity  have  been  exhausted,  and  this  government  can 
see  nothing  in  the  circumstances  to  justify  or  warrant  it  in  having  recourse 
to  any  other  weapons. 

I  am,  sir,  your  obedient  servant, 

A,  P.  UPSHUB, 

SAMUEL  C.  REID,  JR.,  ESQ.,  New  Orleans. 


DISSENTING   OPINION   OF  JUDGE  BLACKFORD.  207 

The  gentleman,  howeve^  to  whom  the  above  letter  was  addressed, 
endeavored,  by  his  subsequent  letters,  to  persuade  our  government 
to  continue  the  negotiation  with  Portugal.  But  Mr.  Calhoun,  the 
(successor  of  Mr.  Upshur  in  the  State  Department,  took  the  same 
view  of  the  subject  with  Mr.  Upshur.  In  a  letter  to  Mr.  Johnson, 
of  Louisiana,  Mr.  Calhoun  says  :  "  The  case  of  the  General  Arm- 
strong was  disposed  of  by  my  predecessor  upon  grounds  which 
appear  to  me  to  be  judicious  and  proper.  Of  this,  Mr.  Reid  has 
been  duly  informed  ;  and  I  can  see  no  good  reason,  under  the  cir- 
cumstances, for  renewing  the  claim,  or  for  continuing  a  correspon- 
dence on  the  subject." 

In  1849,  this  claim  against  Portugal  was  renewed  at  Lisbon,  in 
pursuance  of  instructions  from  Mr.  Clayton,  Secretary  of  State,  but 
without  success.  In  April,  1850,  on  the  demand  being  again  made 
by  our  government,  Portugal  offered  to  refer  the  matter  to  arbitra- 
tion, mentioning  the  King  of  Sweden  as  the  arbitrator.  The  offer 
was  rejected.  In  July,  1850,  another  proposition  to  refer  the  case 
to  arbitration  was  made  by  Portugal.  This  last  proposition  was, 
on  the  5th  of  September  of  the  same  year,  accepted  by  Mr.  Web- 
ster, then  Secretary  of  State.  A  treaty  was  accordingly,  on  the 
26th  of  February,  1851,  entered  into  between  the  two  governments, 
by  which  the  said  claim  against  Portugal  was  submitted  to  the 
arbitrament  of  some  sovereign,  potentate,  or  chief,  of  some  nation 
in  amity  with  both  the  high  contracting  parties. 

The  President  of  the  French  Republic,  Louis  Napoleon,  was 
afterwards  selected  as  the  arbiter,  and  he  consented  to  discharge 
the  dnty.  On  the  llth  of  December,  1852,  the  arbiter  caused  to 
be  delivered,  at  Paris,  to  the  respective  ministers  of  the  United 
States  and  Portugal,  his  award  in  favor  of  Portugal,  as  follows  : 

TRANSLATION  OP    THE  AWARD  OF    PRESIDENT    NAPOLEON,  IN    THE  CASE   OP   THE 
"  GENERAL  ARMSTRONG." 

We,  Louis  Napoleon,  President  of  the  French  Republic  : 
The  Government  of  the  United  States,  and  that  of  her  Majesty  the  Queen 
of  Portugal  and  of  the  Algarves,  having,  by  the  terms  of  a  convention  signed 


208  BEIG   GENERAL   ARMSTRONG. 

at  Washington  on  the  26th  of  February,  1851,  asked  us  to  pronounce  as 
arbiter  upon  a  claim  relative  to  the  American  privaieer  "  General  Armstrong," 
which  was  destroyed  in  the  port  of  Fayal,  on  the  27th  of  September,  1814  ; 
after  having  caused  ourself  to  be  correctly  and  circumstantially  informed  ia 
regard  to  the  facts  which  have  been  the  cause  of  the  difference,  and  after 
having  maturely  examined  the  documents  duly  signed  in  the  name  of  the  two 
parties,  which  have  been  submitted  to  our  inspection  by  the  representatives  of 
both  powers,  considering  that  it  is  clear,  in  fact,  that  the  United  States  were 
at  war  with  her  Britannic  Majesty,  and  her  most  faithful  Majesty  preserving 
her  neutrality,  the  American  brig,  the  "  General  Armstrong,"  commanded  by 
Captain  Reid,  legally  provided  with  letters  of  marque,  and  armed  for  priva- 
teering purposes,  having  sailed  from  the  port  of  New  York,  did,  on  the  26th 
of  September,  1814,  cast  Anchor  in  the  port  of  Fayal,  one  of  the  Azores 
Islands,  constituting  part  of  her  most  faithful  Majesty's  dominions  ; 

That  it  is  equally  clear  that,  on  the  evening  of  the  same  day,  an  English 
squadron,  commanded  by  Commodore  Lloyd,  entered  the  same  port ; 

That  it  is  no  less  certain  that  during  the  following  night,  regardless  of  the 
rights  of  sovereignty  and  neutrality  of  her  most  faithful  Majesty,  a  bloody 
encounter  took  place  between  the  Americans  and  the  English  ;  and  that  on 
the  following  day,  the  27th  of  September,  one  of  the  vessels  belonging  to  the 
English  squadron  came  to  range  herself  near  the  American  privateer  for  the 
purpose  of  cannonading  her  ;  that  this  demonstration,  accompanied  by  the 
act,  determined  Captain  Reid,  followed  by  his  crew,  to  abandon  his  vessel 
and  to  destroy  her  ; 

Considering  that  if  it  be  clear  that,  on  the  night  of  the  26th  of  September, 
some  English  long  boats,  commanded  by  Lieutenant  Robert  Fausset,  of  the 
British  navy,  approached  the  American  brig,  the  "  General  Armstrong,"  it  is 
not  certain  that  the  men  who  manned  the  boats  aforesaid,  were  provided  with 
arms  and  ammunition ; 

That  it  is  evident,  in  fact,  from  the  documents  which  have  been  exhibited 
that  the  aforesaid  long  boats,  having  approached  the  American  brig,  the  crew 
of  the  latter,  after  having  hailed  them  and  summoned  them  to  be  off,  imme- 
diately fired  upon  them,  and  that  some  men  were  killed  on  board  the  English 
boats,  and  others  wounded — some  of  whom  mortally — without  any  attempt 
having  been  made  on  the  part  of  the  crew  of  the  boats  to  repel  at  once  force 
by  force ; 

Considering  that  the  report  of  the  governor  of  Fayal  proves  that  the 
American  captain  did  not  apply  to  the  Portuguese  government  for  protec- 
tion until  blood  had  already  been  shed,  and,  when  the  fire  had  ceased,  the 


DISSENTING   OPINION   OF  JUDGE  BLACKFOBD.  209 

brig  "  General  Armstrong  "  came  to  anchor  under  the  castle  at  a  distance  of 
a  stone's  throw  ;  that  said  governor  states,  that  it  was  only  then,  that  he  was 
informed  of  what  was  passing  in  the  port ;  that  he  did,  on  several  occasions, 
interpose  with  Commodore  Lloyd,  with  a  view  of  obtaining  a  cessation  of 
hostilities,  and  to  complain  of  the  violation  of  a  neutral  territory  ; 

That  he  effectively  prevented  some  American  sailors,  who  were  on  land, 
from  embarking  on  board  the  American  brig,  for  the  purpose  of  prolonging  a 
conflict  wnich  was  contrary  to  the  law  of  nations  ; 

That  the  weakness  of  the  garrison  of  the  island,  and  the  constant  disman- 
tling of  the  forts,  by  the  removal  of  the  guns  which  guarded  them,  rendered 
all  armed  intervention  on  his  part  impossible  ; 

Considering,  in  this  state  of  things,  that  Captain  Reid,  not  having  applied 
from  the  beginning  for  the  intervention  of  the  neutral  sovereign,  and  having  ' 
had  recourse  to  arms  in  order  to  repel  an  unjust  aggression  of  which  he  pre- 
tended to  be  the  object,  has  thus  failed  to  respect  the  neutrality  of  the  terri- 
tory of  the  foreign  sovereign,  and  released  that  sovereign  of  the  obligation  in    , 
which  he  was  to  afford  him  protection  by  any  other  means  than  that  of  a 
pacific  intervention  ; 

From  which  it  follows,  that  the  government  of  her  most  faithful  Majesty 
cannot  be  held  responsible  for  the  results  of  the  collision  which  took  place  in 
contempt  of  her  rights  of  sovereignty,  in  violation  of  the  neutrality  of  her 
territory,  and  without  the  local  officers  or  lieutenants  having  been  required 
in  proper  time,  and  enabled  to  grant  aid  and  protection  to  those  having  a 
right  to  the  same  ; 

Therefore,  we  have  decided,  and  we  declare,  that  the  claim  presented  by 
the  government  of  the  United  States  against  her  most  faithful  Majesty  has  no 
foundation,  and  that  no  indemnity  is  due  by  Portugal  in  consequence  of  the 
loss  of  the  American  brig,  the  "  General  Armstrong,"  armed  for  privateering 
purposes. 

Done  and  signed  by  duplicate,  under  the  seal  of  State,  at  the  palace  of  the 
Tuileries,  on  the  thirtieth  day  of  the  month  of  November,  in  the  year  of 
grace  one  thousand  eight  hundred  and  fifty-two. 

rL.  g  i  L.  NAPOLEON. 

The  whole  correspondence  between  the  American  and  Portuguese 
governments  respecting  this  claim,  together  with  other  papers  in 
the  case,  are  printed,  and  will  accompany  this  opinion. 

The  question  to  be  decided  is,  whether,  under  the  circumstances 

15 


210  BRIG   GENERAL   ARMSTRONG. 

of  the  case,  the  United  States  .are  liable  to  the  claimants  for  the 
loss  occasioned  by  the  destruction  of  the  privateer  ? 

The  claimants  contend  that  they  once  had  a  valid  claim  against 
Portugal  for  one  hundred  and  thirty-one  thousand  six  hundred  dol- 
lar ;  that  they  have  lost  that  claim  by  the  mismanagement  of  the 
same  by  the  United  States  ;  and  that  the  United  States  are  there- 
fore bound,  by  law,  to  pay  them  the  amount  so  lost. 

The  first  inquiry  to  be  made  is  relative  to  the  nature  of  the  de- 
mand of  the  claimants  against  Portugal. 

There  is  no  absolute  certainty,  from  the  evidence,  as  to  whether 
the  privateer  or  the  British  were  the  aggressors.  The  first  gun 
was  fired  by  the  privateer,  but  that  firing  may  have  been  justifiable 
in  self-defence.  Whether  it  was  so  or  not,  is  a  question  upon  which 
there  is  contradictory  evidence.  On  the  part  of  Portugal,  we  have 
the  deposition  of  Lieutenant  Fausset,  of  the  British  navy,  and  two 
of  his  men,  dated  the  27th  of  September,  1814,  which,  according  to 
a  copy  furnished  by  the  Portuguese  minister,  is  as  follows  :  "  That 
on  Monday,  the  26th  instant,  about  eight  o'clock  in  the  evening,  he 
was  ordered  to  go  in  the  pinnace  or  guard-boat,  unarmed,  on  board 
her  Majesty's  brig  Carnation,  to  know  what  armed  vessel  was  at 
anchor  in  the  bay,  when  Captain  Bentham,  of  said  brig,  ordered 
him  to  inquire  of  said  vessel  (which,  by  information,  was  said  to 
be  a  privateer).  When  said  boat  came  near  the  privateer,  they 
hailed  te  say  the  Americans,  and  desired  the  English  boat  to  keep 
off,  or  they  would  fire  into  her  ;  upon  which  Mr.  Fausset  ordered 
his  men  to  back  astern,  and  with  a  boat-hook  was  in  the  act  of  so 
doing,  when  the  Americans,  in  the  most  wanton  manner,  fired  into 
said  English  boat,  killed  two  and  wounded  seven,  some  of  them 
mortally,  and  this,  notwithstanding  said  Fausset  frequently  called 
out  not  to  murder  them  ;  that  they  struck  and  called  for  quarters  ; 
said  Fausset  solemnly  declared  that  no  resistance  of  any  kind 
was  made,  nor  could  they  do  it,  not  having  any  arms,  nor,  of  course, 
sent  to  attack  said  vessel.  Also,  several  Portuguese  boats,  at  the 
time  of  said  unprecedented  attack,  were  going  ashore,  which,  it 
seems,  were  said  to  be  armed." 


OPimotf  OF  JUDGE   BLACKFORD.  211 

On  the  part  of  the  privateer,  we  have  the  protest  of  Captain  Reid 
and  his  officers  before  stated,  made  and  sworn  to  on  said  27th  of 
September,  1814.  That  protest,  after  mentioning  the  privateer's 
arrival  at  Fayal  soon  after  noon  of  the  previous  day,  says  :  "  That 
during  the  said  afternoon  his  crew  were  employed  in  taking  on 
board  water,  when  about  sunset  of  the  same  day,  the  British  brig 
of  war  Carnation,  Captain  Bentham,  appeared  suddenly  doubling 
round  the  northeast  point  of  this  port.  She  was  immediately  fol- 
lowed by  the  British  ship  Rota,  of  thirty-eight  guns,  Captain  P. 
Somerville,  and  the  seventy-four  gun  ship  Plantagenet,  Captain 
Robert  Lloyd,  which  latter,  it  is  understood,  commanded  the 
squadron.  They  all  anchored  about  seven  o'clock,  P.  M.  and 
soon  after  some  some  suspicious  movements  on  their  part,  indi- 
cating an  intention  to  violate  the  neutrality  of  the  port,  induced 
Captain  Reid  to  order  his  brig  to  be  warped  in  shore,  close  under 
the  guns  of  the  castle  ;  that  in  the  act  of  doing  so,  four  boats  ap- 
proached his  vessel  filled  with  armed  men.  Captain  Reid  repeat- 
edly hailed  them,  and  warned  them  to  keep  off;  which  they  disre^ 
garding,  he  ordered  his  men  to  fire  on  them,  which  was  done,  and 
killed  and  wounded  several  men.  The  boats  returned  the  fire,  and 
killed  one  man  and  wounded  the  first  lieutenant ;  they  then  fled  to 
their  ships  and  prepared  for  a  second  and  more  formidable  attack. 
The  American  brig,  in  the  mean  time,  was  placed  within  half  a 
cable's  length  of  the  shore,  and  within  half  a  pistol  shot  of  the 
castle.  Soon  after  midnight,  twelve,  or,  as  some  state,  fourteen 
boats,  supposed  to  contain  nearly  .four  hundred  men,  with  small 
cannon,  swivels,  blunderbusses,  and  other  arms,  made  a  violent 
attack  on  said  brig,  when  a  severe  conflict  ensued,  which  lasted 
near  forty  minutes,  and  terminated  in  the  total  defeat  and  partial 
destruction  of  the  boats,  with  an  immense  slaughter  on  the  part  of 
the  British.  The  loss  of  the  Americans  in  the  actions  was,  one  lieu- 
tenant and  one  seaman  killed,  and  two  lieutenants  and  five  seamen 
wounded.  At  daybreak  the  brig  Carnation  was  brought  close  in, 
and  began  a  heavy  cannonade  on  the  American  brig,  when  Captain 
Reid,  finding  further  resistance  unavailing,  abandoned  the  vessel, 


212  BRIG  GENERAL   AKM8TEOKG. 

after  partially  destroying  her,  and  soon  after  the  British  set  her  on 
fire." 

The  American  consul  at  Fayal,  in  his  note  of  September  26, 1814, 
to  the  governor  of  the  Azores,  says  :  "  In  violation  of  the  neutra- 
lity which  his  royal  highness,  the  Prince  Regent,  has  promised  to 
observe  towards  the  United  States  of  America  and  England  in  the 
present  war,  the  ships  of  war  of  his  Britannic  Majesty,  now  lying  in 
this  port,  lately  ordered  four  or  five  armed  boats  to  surprise  and 
carry  off  the  American  armefl  schooner  General  Armstrong,  which 
is  lying  here  under  the  guns  of  the  castle,  on  the  protection  of  which 
she  regarded  herself  absolutely  in  security.  The  boats  were 
repulsed,  but  a  new  and  more  formidable  attack  is  now  feared."  A 
relation  of  the  conflict,  similar  to  that  given  in  Captain  Reid's  pro- 
test, is  given  by  the  governor  of  the  Azores,  but  as  he  was  not  pre- 
sent at  the  commencement,  he  could  only  speak  from  information  as 
to  that  part  of  it.  The  Portuguese  minister  then  at  Rio  Janeiro, 
considered,  from  information  received  from  the  said  governor,  that 
the  British  were  the  aggressors,  and  in  his  letter  on  the  subject  to 
the  British  minister,  in  December,  1814,  he  denounced  the  conduct 
of  the  British  commander  in  very  strong  terms. 

It  appears  to  me,  from  an  examination  of  the  evidence  of  those 
persons  having  any  personal  knowledge  of  the  affair,  which  evidence 
is  contradictory,  and  none  of  which  is  impeached,  that  the  question 
of  fact  in  controversy  as  to  whether  the  privateer  or  the  British 
ships  were  the  aggressors,  was  a  fair  one  for  negotiation  between 
the  United  States  and  Portugal,  and  to  be  referred,  if  they  could 
not  agree,  to  some  proper  tribunal  for  adjudication. 

There  is  another  inquiry  relative  to  the  demand  of  the  claimants 
against  Portugal,  and  that  is,  whether,  supposing  the  British  ves- 
sels to  have  been  the  aggressors,  the  laws  of  nations  rendered  Por- 
tugal liable  for  the  loss  of  the  privateer  ? 

Had  the  privateer,  instead  of  being  destroyed,  been  captured 
only  by  the  British,  and  had  afterwards  come  into  the  possession  of 
Portugal,  there  is  no  doubt  but  that  Portugal  would  have  been 


DISSENTING   OPINION   OF  JUDGE   BLACKFOKD.  213 

bound  to  restore  the  vessel  to  the  original  owners  ;  nor  is  there  any 
doubt  but  that  the  governor  of  Fayal,  if  he  had  had  the  power, 
would  have  been  bound  to  endeavor,  by  force,  to  prevent  the  dis- 
aster. But  the  difficulty  as  to  these  matters  is,  that  the  privateer 
having  been  destroyed  could  not  be  restored,  and  that  the  gover- 
nor had  no  means  by  which  he  could  have  prevented,  by  force,  the 
destruction  of  the  privateer.  The  above  stated  question  therefore, 
whether,  supposing  the  British  to  have  been  the  aggressors,  Por- 
tugal was  liable,  by  the  laws  of  nations,  to  pay  for  the  privateer,  is 
not  entirely  free  from  doubt.  And  the  cause  of  the  doubt  is,  that 
the  privateer  was  never  in  the  possession  of  Portugal,  and  there  was 
no  neglect  of  duty  by  the  governor  of  Fayal.  Chancellor  Kent,  in 
one  part  of  his  Commentaries,  says  :  "  It  is  not  lawful  to  make 
neutral  territory  the  scene  of  hostility,  or  to  attack  an  enemy  while 
within  it,  and  if  the  enemy  be  attacked,  or  any  capture  made  under 
neutral  protection,  the  neutral  is  bound  to  redress  the  injury  and 
effect  restitution." — 1  Kent's  Com.,  lit.  But  on  a  subsequent 
page  his  language  is  as  follows  :  "  A  neutral  has  no  right  to 
inquire  into  the  validity  of  a  capture,  except  in  cases  in  which  the 
rights  of  neutral  jurisdiction  were  violated ;  and  in  such  cases,  the 
neutral  power  will  restore  the  property,  if  found  in  the  hand  of  the 
offender,  and  within  its  jurisdiction,  regardless  of  any  sentence  of 
condemnation  by  a  court  of  a  belligerent  captor.  It  belongs 
solely  to  the  neutral  government  to  raise  the  objection  to  a  capture 
and  title,  founded  on  the  violation  of  neutral  rights.  The  adverse 
belligerent  has  no  right  to  complain  when  the  prize  is  duly  libelled 
before  a  competent  court.  If  any  complaint  is  to  be  made  on  the 
part  of  the  captured,  it  must  be  by  his  government  to  the  neutral 
government,  for  a  fraudulent,  or  unworthy,  or  unnecessary  submis- 
sion to  a  violation  of  its  territory  -,  and  such  submission  will  natu- 
rally provoke  retaliation."  (1  Kent's  Com.,  121.)  If  this  last-cited 
passage  from  Kent  be  the  law,  Portugal  was  not  liable,  because 
it  is  certain  that  the  governor  of  Fayal  did  not  submit  to  the 
outrage  fraudulently,  or  unworthily,  or  unnecessarily.  But,  on  the 


BEIG    GENERAL   ARMSTRONG. 

contrary,  he  endeavored,  as  soon  as  he  had  notice  of  the  hostile 
acts,  to  prevent,  by  peaceable  means,  the  further  violation  of  the 
neutrality  of  the  port ;  and  he  had  no  other  means  by  which  it 
could  be  prevented.  Wheaton's  language  is  as  follows  :  "  Where 
a  capture  of  enemy's  property  is  made  within  neutral  territory,  or 
by  armaments  unlawfully  fitted  out  within  the  same,  it  is  the 
right  as  well  as  the  duty  of  the  neutral  State,  where  the  property 
thus  taken  comes  into  its  possession,  to  restore  it  to  the  original 
owners.  (Wheaton's  International  Law,  494  )  This  doctrine  of 
Wheaton  agrees  with  that  laid  down  by  Kent  in  the  passage  last 
above  cited  from  his  Commentaries.  Kent  there  says,  that  in 
cases  in  which  the  rights  of  neutral  jurisdiction  are  violated,  "  the 
neutral  power  will  restore  the  property,  if  found  in  the  hands  of  the 
offender  and  within  its  jurisdiction."  This  doctrine  of  these 
eminent  American  authors  is  decidedly  in  favor  of  Portugal  ;  for 
if  her  liability  depended  on  her  having  possession  of  the  privateer, 
she  certainly  was  not  liable,  the  yessel  having  been  destroyed  by 
the  British  ships. 

The  question  respecting  the  liability  of  Portugal  under  the 
circumstances  of  the  case,  does  not  appear  to  be  settled  by  foreign 
writers  on  the  laws  of  nations.  Bynkershoek  may  be  considered  to 
be  against  the  Portuguese  side  of  the  question.  (Bynkershoek  on 
the  Law  of  War,  59,  60.)  But  Kluber,  who  is  a  much  later 
writer,  is  in  favor  of  Portugal.  This  last  named  author  says  : 
"  That  the  neutral  is  not  to  allow,  voluntarily,  that  either  of  the 
belligerent  parties  shall  commit,  upon  its  neutral  territory,  either 
continental  or  maritime,  any  hostile  acts."  (Kluber's  Law  of 
Nations,  page  86,  section  284.)  Portugal  was  not  accountable  for 
the  outrage,  according  to  the  authority  of  Kluber,  because  it  is 
clear  that  the  governor  of  Fayal  did  not  allow,  voluntarily,  the 
breach  of  the  neutrality  of  the  port.  This  doctrine  of  Kluber  is 
substantially  the  same  with  that  of  Kent  last  referred  to  ;  the 
latter  author  saying,  that  the  complaint  against  the  neutral  gov- 
ernment must  be  for  "  a  fraudulent,  or  unworthy,  or  unnecessary 


DISSENTING   OPINION   OF  JUDGE   BLA.CKFOED.  215 

submission  to  a  violation  of  territory."  That  there  was  no  such 
submission  in  this  case,  is  shown  by  the  correspondence  between 
the  governor  and  the  British  commander  during  the  night  of  the 
26th  of  September  aforesaid.  Indeed,  Captain  Reid's  protest  con- 
fines his  complaint  to  the  inability  of  Portugal.  That  protest 
says  :  "  And  the  said  Captain  Reid  also  protests  against  the  gov- 
ernment of  Portugal,  for  their  inability  to  protect  and  defend  the 
neutrality  of  this  their  port  and  harbor." 

It  appears  to  me,  therefore,  that  the  question  of  public  law 
involved  in  the  present  case,  as  well  as  the  question  of  fact  before 
referred  to,  was  a  very  proper  subject  to  be  submitted  by  the 
governments  of  the  United  States  and  Portugal  to  arbitration. 

The  questions  mentioned  above  were  exceedingly  important. 
Not  only  a  large  amount  of  money  depended  upon  the  result,  but, 
what  is  of  infinitely  higher  concern,  the  honor  of  two  independent 
nations  was  involved  in  the  controversy.  Those  questions,  both  of 
fact  and  of  law,  had  been  the  subjects  of  negotiation  for  more  than 
thirty  years  previously  to  1851,  when  the  treaty  between  the  two 
governments  was  entered  into  submitting  the  controversy  to  arbi- 
tration, which  resulted  in  an  award,  by  the  President  of  the  French 
republic,  against  the  validity  of  the  claim. 

In  consequence  of  that  award,  the  claimants  have  abandoned  their 
claim  against  Portugal ;  but  they  now  turn  round  and  demand  the 
amount,  namely,  one  hundred  and  thirty-one  thousand  six  hundred 
dollars  against  the  United  States.  The  ground  of  this  demand  is, 
that  the  Secretaries  of  State,  and  the  President  and  Senate  of  the 
United  States,  have  lost,  by  mismanagement,  the  claim  against  Por- 
tugal, and  have  thus  made  their  own  government  liable  for  the 
amount.  There  are  several  charges  of  mismanagement  insisted  on, 
which  will  be  particularly  noticed. 

One  of  the  charges,  which  is  that  of  neglect  in  the  negotiation, 
admits  of  a  short  answer.  The  delay  which  occurred,  from  the  time 
the  claim  was  presented  soon  after  it  originated,  till  1837,  is  account- 
ed for  by  the  disordered  state  of  the  government  of  Portugal  during 


216  BBIO   GENERAL   ARMSTRONG. 

that  period.  The  Secretary  of  State,  Mr.  McLean,  in  1834,  gives 
the  unsettled  political  affairs  of  Portugal  as  a  reason  for  not  then 
insisting  on  the  claim.  The  claimants,  in  their  argument,  made  part 
of  their  memorial  to  Congress,  in  1854,  says  ;  "  These  delays  were 
occasioned,  as  will  appear  by  the  correspondence,  by  the  peculiar 
condition  of  the  government  of  Portugal,  and  the  indisposition  of 
the  American  government  to  urge  this  claim  on  her,  until  that  gov- 
ernment should  be  placed  in  a  better  situation,  and  under  better 
auspices;  but  the  owners  have  never  failed  to  make  continual  claim," 
etc.  The  American  charge*  d'affaires  at  Lisbon,  gives  to  the  Portu- 
guese minister,  in  1850,  the  following  reason  for  the  non-presenta- 
tion of  the  claim  between  1815  and  1831,  namely:  "The  disincli- 
nation of  the  government  of  the  United  States  to  urge  the  claim 
upon  Portugal,  convulsed,  as  she  almost  continually  was,  by  intestine 
difficulties." 

Another  charge  of  mismanagement  of  the  claim,  relates  to  the  sub- 
mission to  arbitration. 

The  claimants  say  that  our  government  received  a  bonus  from  Por- 
tugal as  a  consideration  for  referring  the  case.  This  objection  must 
depend  upon  the  face  of  the  treaty.  That  was  made,  on  the  part 
of  our  government,  by  the  President  and  Senate.  It  was  by  the 
treaty  alone  that  the  case  was  referred.  The  treaty  commences  as 
follows:  "The  United  States  of  America  and  Her  Most  Faithful  Ma- 
jesty, the  Queen  of  Portugal  and  of  the  Algarves,  equally  animated 
with  the  desire  to  maintain  the  relations  of  harmony  and  amity  which 
have  always  existed,  and  which  it  is  desirable  to  preserve  between  the 
two  Powers,  having  agreed  to  terminate,  by  a  convention,  the  pending 
questions  between  their  respective  governments,  in  relation  to  certain 
pecuniary  claims  of  American  citizens,  presented  by  the  government 
of  the  United  States  against  the  government  of  Portugal,  have  ap- 
pointed as  their  plenipotentiaries  for  that  purpose,"  etc.  The  first 
article  is  as  follows  :  "  Her  Most  Faithful  Majesty,  the  Queen  of 
Portugal  and  of  the  Algarves,  appreciating  the  difficulty  of  the 
two  governments  agreeing  upon  the  subject  of  said  claims,  from  the 


DISSENTING   OPINION   OF   JUDGE   BLACKFORD.  217 

difference  of  opinion  entertained  by  them  respectively,  which  diffi- 
culty might  hazard  the  continuance  of  the  good  understanding  now 
prevailing  between  them,  and  resolved  to  maintain  the  same  unim- 
paired, has  assented  to  pay  to  the  government  of  the  United  States  a 
sum  equivalent  to  the  indemnities  claimed  for  several  American  citi- 
zens (with  the  exception  of  that  mentioned  in  the  fourth  article,) 
and  which  sum  the  government  of  the  United  States  undertakes  to 
receive  in  full  satisfaction  of  said  claims,  except  as  aforesaid,  and  to 
distribute  the  same  among  the  claimants."  The  second  and  third 
articles  merely  provide  for  the  submission  to  arbitration  of  the  case 
of  the  brig  General  Armstrong.  The  fourth  article  is  as  follows  ; 
"  The  pecuniary  indemnities  which  Her  Most  Faithful  J^ajesty  pro- 
mises to  pay,  or  cause  to  be  paid,  for  all  the  claims  presented  pre- 
vious to  the  6th  day  of  July,  1850,  in  behalf  of  the  American  citizens, 
by  the  government  of  the  United  States  (with  the  exception  of 
that  of  the  General  Armstrong, )  are  fixed  at  ninety-one  thousand 
seven  hundred  and  twenty-seven  dollars,  in  accordance  with  the  cor- 
respondence between  the  two  governments."  The  other  articles 
have  no  bearing  on  the  question.  There  is  surely  nothing  in  this 
treaty  to  support,  in  the  slightest  degree,  the  idea  that  the  submis- 
sion of  the  case,  by  the  President  and  Senate,  was  in  consideration 
of  a  bonus,  or  for  any  other  purpose  than  that  of  having  the  claim 
properly  and  legally  investigated  and  determined.  The  treaty  pro- 
vides for  the  payment  of  all  the  other  claims  except  that  of  the  Gen- 
eral Armstrong,  and  refers  that  claim  to  arbitration  ;  and  that  is 
the  whole  of  the  treaty  as  regards  the  submission.  It  is  unneces- 
sary, surely,  to  notice  any  further  this  extraordinary  charge  against 
the  treaty-making  power  of  the  United  States. 

Another  charge  is,  that  our  government  had  no  authority  to  sub- 
mit the  case  to  arbitration,  without  consulting  the  claimants.  This 
position  is  untenable.  When  the  government,  at  the  request  of  the 
claimants,  consented  to  make  a  demand  on  Portugal  for  the  alleged 
claim,  the  controversy  became  one  between  government  and  govern- 
ment, which  might,  if  the  governments  chose,  be  referred  to  arbitra- 


218  BRIG   GENEEAi   ARMSTRONG. 

tion.  The  law  of  nations  on  this  subject  is  stated  by  Mr.  Wildman 
to  be  as  follows  : 

"  The  only  pacific  modes  of  settling  differences,  which  cannot  be 
adjusted  by  negotiation,  are  arbitration  and  reprisal.  First,  with 
respect  to  arbitration  :  An  arbitrator  is  a  person  authorized  by  the 
parties  in  difference,  to  decide  what  shall  be  done  with  regard  to  the 
matters  submitted  to  his  judgment.  Where  the  award  of  an  arbi- 
trator is  final,  and  confined  to  the  terms  of  the  submission,  it  is  con- 
clusive, unless  it  has  been  made  in  collusion  with  one  of  the  parties. 
— Puffendorf,  book  5,  chap.  13  ;  Vattel,  book  2,  sec.  329.  For 
there  is  no  superior  authority  by  which  the  validity  of  such  an  award 
can  be  examined,  and  consequently  it  is  binding,  although  it  be 
nnjust. — Grotius,  book  3,  chap.  20,  sec.  46  ;  Puffendorf,  ibid." — 
1  Wildman's  International  Law,  p.  186,  chap.  5. 

It  is  certain,  therefore,  that  the  submission  to  arbitration  of  the 
controversy,  relative  to  the  claim  against  Portugal,  was  in  strict 
accordance  with  the  laws  of  nations.  The  idea  that  the  government 
was  not  authorized  to  refer  the  case  to  a  third  power,  without  con- 
sulting the  claimants,  is  not  well-founded.  The  correct  view  of  this 
matter,  is  that  as  soon  as  our  government  was  induced  by  the  claim- 
ants to  interfere,  the  controversy  became  an  affair  of  state,  to  be 
treated  of  between  the  two  governments  as  other  differences  be- 
tween nations  are  treated — that  is  to  say,  by  negotiation,  and  such 
other  modes  as  are  recognized  by  the  laws  of  nations.  But,  further 
it  appears  that  the  claimants  acquiesced  in  the  reference.  The  pre- 
sent Secretary  of  State,  Mr  Marcy,  in  his  letter  of  1854,  to  the 
chairman  of  Foreign  Relation,  says:  "From  an  examination  of  the 
files  of  the  department,  it  appears  that,  pending  the  negotiations 
which  terminated  in  the  convention  with  Portugal  of  1851,  two  let- 
ters were  addressed  to  the  Secretary  of  State,  on  the  subject  of  the 
reference  of  the  Armstrong  claim  to  the  arbitration  of  a  third 
Power  :  one  dated  August  26,  1850,  by  S.  C.  Reid,  'late  comman- 
der of  the  privateer  General  Armstrong,'  and  the  other  dated  Sep- 
tember 5,  1850,  by  S.  C.  Reid,  jr.,  '  sole  and  only  authorized  agent 


.    DISSENTING   OPINION   OF  JUDGE   BLAOKFOED.  219 

of  the  claimants  '  to  the  case.  Copies  of  these  letters,  and  of  the 
replies  thereto,  are  herewith  enclosed.  There  are  several  other  let- 
ters from  the  last-named  gentleman  on  the  same  subject,  and  of  sub- 
sequent dates,  among  the  files  of  the  department,  from  which  it 
would  appear  that  the  claimants  in  the  case  had  acquiesced  in  the 
decision  of  their  government  to  agree  to  refer  their  claim  to  arbi- 
trament. If  a  different  opinion  was  entertained  by  them,  it  is  at 
least  certain  that  their  authorized  agent  did  not,  in  any  letters  to 
this  department,  protest  against  that  decision,  or  intimate  doubts 
as  to  its  propriety  or  expediency."  Those  statements  of  the  Secre- 
tary seem  to  be,  at  all  events,  a  full  answer  to  this  charge. 

Another  charge  of  mismanagement  is  the  refusal  of  the  Secretary 
of  State,  Mr.  Webster,  to  forward  to  the  arbiter  a  written  argument 
of  the  claimants. 

The  treaty  between  the  two  governments,  by  which  the  case  was 
referred,  contains  the  following  article  : 

"  ART.  3. — So  soon  as  the  consent  of  the  sovereign,  potentate,  or 
chief  of  some  friendly  nation,  who  shall  be  chosen  by  the  two  high 
contracting  parties,  shall  have  been  obtained  to  act  as  arbiter  in  the 
aforesaid  case  of  the  privateer  brig  G-eneral  Armstrong,  copies  of  all 
correspondence,  which  has  passed  in  reference  to  said  claim  between 
the  two  governments  and  their  respective  representatives,  shall  be 
laid  before  the  arbiter,  to  whose  decision  the  two  high  contracting 
parties  hereby  bind  themselves  to  submit." 

It  appears  to  me  that  this  language  of  the  treaty  shows  that  the 
arbiter  was  to  determine  the  case  upon  the  correspondence  which  had 
taken  place  on  the  subject  between  the  two  governments.  That  cor- 
respondence had  been  very  extensive,  and  had  been  conducted  with 
great  ability  on  both  sides.  The  questions  of  fact  and  of  law  belong- 
ing to  the  case  had  been  fully  investigated  by  the  gentlemen  to  whom 
the  business  was  confided.  It  would  seem  to  have  been  proper,  under 
those  circumstances,  for  the  parties  to  submit  the  cause  to  the  arbiter 
upon  the  correspondence,  without  further  argument  by  either  of  them. 
The  claimants  had  no  additional  evidence  to  furnish.  It  is  proper, 


220  BRIG   GENERAL   ARMSTRONG. 

also,  to  add,  that  if,  as  the  claimants  contend,  Mr.  Webster's  refusal 
to  forward  the  argument  was  improper,  he  was  guilty  of  a  wrong  to 
the  claimants.  Now  the  law  is  settled,  that  for  any  such  wrong  by 
a  public  officer,  the  government  is  not  liable  to  the  individual  injured. 
The  language  of  Judge  Story  on  this  subject  is  as  follows  :  "  In  the 
next  place,  as  to  the  liability  of  public  agents  for  torts  or  wrongs 
done  in  the  course  of  their  agency,  it  is  plain  that  the  government 
itself  is  not  responsible  for  the  misfeasances,  or  wrongs,  or  negli- 
gences, or  omissions  of  duty  of  the  subordinate  officers  or  agents 
employed  in  the  public  service  ;  for  it  does  not  undertake  to  guaranty 
to  any  persons  the  fidelity  of  any  of  the  officers  or  agents  whom  it 
employs,  since  that  would  involve  it,  in  all  its  operations,  in  endless 
embarrassments,  and  difficulties,  and  losses,  which  would  be  sub- 
versive of  the  public  interests  ;  and,  indeed,  laches  are  never  im- 
putable  to  the  government." — Story  on  Agency,  section  319. 

To  place  this  charge  in  its  true  light,  I  must  borrow  the  argument 
of  an  eminent  statesman.  Mr.  Webster,  in  his  refusal  to  forward 
the  argument,  was  either  right  or  wrong.  If  Mr.  Webster  was 
right,  then  there  is  an  end  of  the  charge.  If  Mr.  Webster  was 
wrong,  then  there  is  an  end  of  the  charge  also  ;  because  the  govern- 
ment is  not  liable  for  the  wrong  of  a  public  officer  in  his  action 
respecting  a  private  claim.  So  that  whether  Mr.  Webster  was  right 
or  wrong,  there  is  no  ground  for  the  charge. 

The  claimants  make  one  more  charge  of  mismanagement  of  their 
claim,  namely,  that  the  award  should  have  been  rejected  as  not 
being  within  the  terms  of  the  submission. 

The  claimants  say  that  the  arbiter  has  decided  on  the  facts  of  the 
case,  when  he  was  only  authorized  to  decide  a  question  of  law.  The 
second  article  of  the  treaty  referring  the  case  is  as  follows  : 

"The  high  contracting  parties  not  being  able  to  come  to  an 
agreement  upon  the  question  of  public  law  involved  in  the  case  of 
the  American  privateer  brig  General  Armstrong,  destroyed  by 
British  vessels  in  the  waters  of  the  island  of  Fayal,  in  September, 
1814,  Her  Most  Faithful  Majesty  has  proposed,  and  the  United 


DISSENTING   OPINION  OF  JUDGE  BLACKFOED.  221 

States  of  America  have  consented,  that  the  claim  presented  by  the 
American  government  in  behalf  of  the  captain,  officers,  and  crew,  of 
the  said  privateer,  should  be  submitted  to  the  arbitrament  of  a  sove- 
reign, potentate,  or  chief  of  some  nation  in  amity  with  both  the 
high  contracting  parties."  The  third  article  (hereinbefore  copied) 
contains  the  following  provision  :  "Copies  of  all  correspondence 
which  has  passed,  in  reference  to  said  claim,  between  the  two  gov- 
ernments and  their  respective  representatives,  shall  be  laid  before 
the  arbiter,  to  whose  decision  the  two  high  contracting  parties  hereby 
bind  themselves  to  submit."  The  second  article  commences  by 
saying,  that  the  parties  disagreed  respecting  the  question  of  public 
law  ;  but  when  the  article  comes  to  state  the  agreement  to  submit, 
it  says,  that  Her  Most  Faithful  Majesty  has  proposed,  and  the 
United  States  of  America  have  consented,  that  the  claim  presented 
by  the  American  government  in  behalf,  etc.,  should  be  submitted  to 
the  arbitrament,  etc. ;  and  the  third  article,  in  order  to  enable  the 
arbiter  to  determine  the  merits  of  the  claim,  directs  that  copies  of  all 
the  correspondence,  in  reference  to  the  claim,  should  be  laid  before 
him.  It  seems,  therefore,  to  be  very  clear  that  the  merits  of  the 
claim,  that  is,  both  the  facts  and  law,  were  submitted  to  the  arbiter, 
and  were  to  be  decided  by  him. 

The  consequence  is,  that  the  award,  which  is  in  favor  of  Portugal 
upon  the  facts  that  the  case  and  the  law  applicable  to  them  as  they 
were  understood  by  the  arbiter,  must  be  considered  to  be  within  the 
submission,  and  to  have  been  rightly  accepted  by  the  government. 

I  have  now  examined  all  the  charges  made  by  the  claimants  against 
the  United  States  as  to  the  management  of  the  claim,  and  have  come 
to  the  conclusion  that  none  of  them  are  sustainable. 

But  there  is  another  and  more  enlarged  view  of  this  case,  which  it 
is  proper  to  notice.  This  view  is  presented  by  the  following  letters 
of  instruction  from  Mr.  Forsyth,  as  Secretary  of  State,  to  Mr.  Kav- 
anagh,  our  charge"  d'affaires  at  Lisbon,  in  regard  to  the  present 
claim  : 


BRIG  GENERAL   ARMSTRONG. 


DBPABTMBSI  OF  STATB, 

Washington,  October  22, 183&, 

SIR  :  In  a  dispatch  addressed  to  you  on  the  20th  of  May  last  (No.  4),  your 
attention  was  called  to  a  claim  of  the  owners,  officers,  and  crew  of  the  Amer- 
ican privateer  General  Armstrong,  which  was  captured  and  destroyed  by  a 
British  fleet  in  the  port  of  Fayal,  during  the  last  war  between  the  United  States 
and  Great  Britain  ;  and  you  were  informed  that  Captain  Reid,  who  represented 
himself  to  be  the  agent  of  the  parties  concerned,  would  be  requested  to  transmit 
to  you  the  necessary  documents  to  establish  the  claim,  and  to  show  the  amount 
of  damages  to  which  the  persons  interested  were  entitled.  Permission  having 
been  granted  to  Captain  Reid  to  forward  those  documents  through  the  depart- 
ment, the  enclosed  papers  have  just  been  received  from  him,  and  are  transmit- 
ted to  you  without  examination.  The  department  is  not  to  be  understood) 
therefore,  as  expressing  any  opinion  in  respect  to  their  sufficiency  for  the 
purpose  for  which  they  are  designed,  or  as  to  the  amount  of  the  claim  which 
you  are  to  make  upon  the  Portuguese  government.  It  is  not  thought  necessary 
to  add  anything  to  the  instructions  which  have  heretofore  been  given  to  you 
upon  the  subject. 

I  am,  sir,  your  obedient  servant, 

JOHN  FORSTTB. 

{Retract.] 
DKFABTUXHT  OF  STITK, 

Washington,  September  21, 1886. 

SIR:  *  *  *  *  *  *  « 

It  is  not  necessary  that  you  should  wait  for  any  further  opinion  of  the 
department  upon  the  claim  of  the  owners,  officers,  and  crew  of  the  privateer 
General  Armstrong.  You  have  already  been  instructed  as  to  the  general 
character  of  this  claim,  and  the  principle  upon  which  it  is  founded.  You  will 
make  the  best  use  of  such  testimony  as  has  been  furnished  you  by  the  claim- 
ants in  its  support ;  and  as  it  is  well  understood  that,  after  asking  the  inter- 
ference of  their  government  to  procure  redress  for  the  injuries  they  supposed 
themselves  to  have  sustained,  the  parties  must  abide  by  such  settlements  as 
that  government  may  make,  you  will,  after  a  careful  examination  of  the  evi- 
dence, demand  from  the  Portuguese  authorities  the  highest  amount  of  damages 
which,  in  your  judgment,  a  prudent  and  conscientious  man  would  feel  himself 
justified  in  asking,  were  he  prosecuting  his  own  claim.  *  •  *  * 
I  am,  sir,  your  obedient  servant, 

JOHN  FORSYTE. 


DISSENTING   OPINION   OF  JUDGE  BLACKFOED,  223 

The  doctrine  of  this  last  letter  of  Mr.  Forsyth's  is  similar  to  that 
stated  by  Mr.  Adams,  as  Secretary  of  State,  in  1823.  The  follow* 
ing  is  Mr.  Adams's  language  :  "  Bat  unacknowledged,  unsettled, 
unliquidated  claims  form  the  natural  subject  of  negotiation,  and  of 
all  negotiation  the  necessary  and  essential  character  is  compromise. 
Of  such  claims,  whether  originating  in  contract  or  in  wrong,  the 
very  application  of  an  individual  to  one  government  to  assist  him  in 
the  enforcement  of  his  claims  upon  another,  imports,  of  itself,  the 
consciousness  that  he  cannot  obtain  his  claims  without  that  assistance, 
and  makes  them  at  once  a  subject  of  negotiation  and  compromise." 
House  Rep.  1  vol.,  1  sess.  33d  Congress. 

I  consider  when,  at  the  request  of  a  claimant  on  a  foreign  nation, 
our  government,  without  consideration,  assents  to  interfere  in  his 
behalf,  its  action  may  be  by  negotiation,  compromise,  arbitration,  or 
even  by  reprisals  or  war.     But  in  the  adoption  %f  any  such  measure, 
the  government,  by  the  understanding  of  the  parties,  and  by  the 
laws  of  nations,  exercises  its  own  judgment  and  discretion.    The 
claim  thus  in  the  possession  of  the  government,  becomes  a  national 
one,  to  be  attended  to  as  other  claims  of  the  nation  are  attended  to. 
The  government  on  such  occasions  acts,  not  as  an  agent  of  the 
claimants,  but  in  its  sovereign  capacity,  and  with  a  view  not  merely 
to  the  individual  interest  of  the  claimant,  but  to  the  general  welfare 
of  the  nation.     It  frequently  happens  where  a  number  of  citizens  of 
one  nation  have  claims  on  another  nation,  and  solicit  the  interfer* 
ence  of  their  own  government,  that  a  treaty  is  entered  into  between 
the  two  nations,  by  which  the  claims  are  discharged  on  the  payment 
of  a  certain  sum  to  be  distributed  among  the  claimants.     If  that  sum 
prove  insufficient,  the  claimants  must  bear  the  loss.    The  case  is  one 
of  compromise,  and  the  claimants  must  abide  by  it.     See  the  commu- 
nication of  Mr.  Adams  above  referred  to.    The  judgment  and  discre- 
tion of  our  government  in  the  present  case,  were  exercised  by  the 
President  and  Senate  in  referring,  by  a  treaty  with  Portugal,  the 
claim  in  question  to  the  arbitrament  of  the  President  of  the  French 
republic,  and  by  the  executive  department  in  its  negotiations  with 


224  BBIG  GENERAL  AEMSTEONG. 

the  Portuguese  authorities  before  and  after  the  submission.  This 
exercise  of  judgment  and  discretion  by  the  treaty-making  power, 
and  by  the  executive  department,  was  political  in  its  nature,  and  is 
entirely  independent  of  the  judiciary.  The  result  was  an  award  of 
the  arbiter,  upon  the  merits,  in  favor  «of  Portugal.  That  award 
must  be  considered  final  and  conclusive.  Grotius,  as  to  the  effect 
of  such  an  award,  says  :  "  Although  the  civil  law  may  decide  upon 
the  conduct  of  such  arbitrators,  to  whom  a  compromise  is  referred, 
so  as  to  allow  an  appeal  from  their  decision,  or  complaints  against 
their  injustice  ;  this  can  never  take  place  between  kings  and  nations. 
For  here  there  is  no  superior  power  that  can  either  rivet  or  relax 
the  bonds  of  an  engagement.  The  decree,  therefore,  of  such  arbiter 
must  be  final  and  without  appeal." — Grotius,  book  3,  ch.  20.  The 
claimants  admit  that  the  award  is  conclusive  as  regards  Portugal. 
That  admission  is  intended  as  a  justification  for  their  now  charging 
the  United  States  instead  of  Portugal  ;  but  there  is  no  reason  for 
the  charge.  Our  government  never  had  any  concern  in  the  claim, 
except  that,  to  oblige  the  claimants,  and  on  their  repeated  and 
urgent  solicitations,  it  made  great  efforts  for  many  years  to  obtain 
for  them  from  Portugal  the  amount  they  claimed.  These  efforts 
failed  of  success  only  because  the  claimants  did  not  furnish  sufficient 
evidence  to  satisfy  the  arbitrator  that  their  claims  were  valid.  That 
being  the  case,  I  know  of  no  ground  upon  which  the  United  States 
can  be  considered  liable  for  the  claim  in  a  court  of  justice,  governed, 
as  this  court  is,  by  legal  principles.  The  bravery  of  the  officers  and 
crew  of  the  privateer  in  the  conflict  at  Fayal  cannot  be  too  highly 
admired.  For  their  valor  on  that  occasion,  they  received  from 
Congress,  in  1834,  an  appropriation,  as  prize  money,  of  ten  thou- 
sand dollars.  For  any  other  compensation,  to  which  the  present 
claimants  may  believe  themselves  entitled,  they  must  rely,  in  my 
opinion,  not  upon  any  legal  right,  but  upon  the  liberality  of  Con- 
gress. 

For  the  above  reasons,  I  dissent  from  the  judgment  of  the  major- 
ity of  the  court  in  this  case. 


APPENDIX. 


To  Captain  S.  G.  Reid,  commander  of  the  private  armed  "brig  of  war 
called  the  General  Armstrong. 

INSTRUCTIONS  FOR  THE  PRIVATE  ARMED  VESSELS  OF  THE 
UNITED  STATES. 

1.  The  tenor  of  your  commission  under  the  act  of  Congress,  entitled 
"  An  act  concerning  letters  of  marque,  prizes,  and  prize  goods,"  a  copy 
of  which  is  hereto  annexed,  will  be  kept  constantly  in  your  view.    The 
high  seas,  referred  to  in  your  commission,  you  will  understand,  generally, 
to  extend  to  low  water  mark ;   but  with  the  exception  of  the  space 
within  one  league,  or  three  miles,  from  the  shore  of  countries  at  peace 
both  with  Great  Britain  and  with  the  United  States.    You  may,  never- 
theless, execute  your  commission  within  that  distance  of  the  shore  of  a 
nation  at  war  with  Great  Britain,  and  even  on  the  waters  within  the 
jurisdiction  of  such  nation,  if  permitted  so  to  do. 

2.  You  are  to  pay  the  strictest  regard  to  the  rights  of  neutral  powers, 
and  the  usages  of  civilized  nations ;  and  in  all  your  proceedings  towards 
neutral  vessels,  you  are  to  give  them  as  little  molestation  or  interruption 
as  will  consist  with  the  right  of  ascertaining  their  neutral  character,  and 
of  detaining  and  bringing  them  in  for  regular  adjudication,  in  the  proper 
cases.    You  are  particularly  to  avoid  even  the  appearance  of  using  force 
or  seduction,  with  a  view  to  deprive  such  vessels  of  their  crews,  or  of 
their  passengers,  other  than  persons  in  the  military  service  of  the 
enemy. 

3.  Towards  enemy  vessels  and  their  crews,  you  are  to  proceed,  in 
exercising  the  rights  of  war,  with  all  the  justice  and  humanity  which 
characterize  the  nation  of  which  you  are  members. 

16  225 


226  APPENDIX. 

4.  The  master  and  one  or  more  of  the  principal  persons  belonging  to 
captured  vessels,  are  to  be  sent,  as  soon  after  the  capture  as  maybe,  to 
the  judge  or  judges  of  the  proper  court  in  the  United  States,  to  be 
examined  upon  oath,  touching  the  interest  or  property  of  the  captured 
vessel  and  her  lading :  and  at  the  same  time  are  to  be  delivered  to  the 
judge  or  judges,  all  passes,  charter  parties,  bills  of  lading,  invoices,  let- 
ters and  other  documents  and  writings  found  on  board ;  the  said  papers 
to  be  proved  by  the  affidavit  of  the  commander  of  the  capturing  vessel, 
or  some  other  person  present  at  the  capture,  to  be  produced  as  they 
were  received,  without  fraud,  addition,  subduction  or  embezzlement. 
By  command  of  the  President  of  the  U.  8.  of  America. 

JAMBS  MONROE,  Secretary  of  State. 


LETTER   OF   INSTRUCTIONS   FROM    MESSRS.    JENKINS   & 
HAVENS,   AGENTS,   TO  OAPT.   SAMUEL  0.  REID. 

(Copy)  New  YORK,  3d  Sept.,  1814. 

CAPT.  SAMUEL  0.  REID: 

The  private  armed  brig  of  war  General  Armstrong  under  your 
command,  being  now  ready  for  a  cruise,  it  becomes  necessary  for  us  to 
furnish  instructions  thereto — in  doing  this,  we  do  not  mean  to  debar  you 
the  privilege  of  exercising  your  discretion  in  the  choice  of  a  station,  but 
we  recommend,  as  in  our  opinion  being  the  most  likely  of  affording 
objects  for  enterprise  and  profit,  that  you  stretch  off  to  Madeira,  where 
you  will  be  most  likely  to  intercept  the  Brazil  convoys,  and  should  you 
be  successful  in  falling  in  with  vessels,  finish  your  cruise  there.  If,  on 
the  contrary,  you  cannot  succeed  in  capturing  vessels  enough,  and  of 
sufficient  value  to  man,  we  would  recommend  you  to  go  through  the 
Cape  de  Verde  Islands  and  fill  up  your  water,  and  from  thence  on  the 
coast  of  Brazil.  The  prizes  you  may  order  for  the  United  States,  we 
think  wfll  be  best  to  be  ordered  direct  for  New  York  or  Wilmington,  and 
in  the  event  of  their  safe  arrival  at  any  port  in  the  United  States,  you  will 
direct  them  to  write  to  us  immediately  on  arrival,  that  we  may  send  on 
a  confidential  person  to  take  charge  of  the  property,  in  preference  to 
appointing  agents  at  different  places. 

On  your  return  to  the  United  States,  should  you  have  any  prisoners 
on  board,  take  care  to  secure  them  until  they  are  delivered  to  the  proper 


APPENDIX.  227 

officer  in  order  to  obtain  the  bounty.    Hoping  that  yonr  cruise  may  ter- 
minate successfully  and  honorably  to  yourself,  officers,  and  crew,  and 

your  country,  we  are 

Your  assured  friends, 

(Signed)  JENKINS  &  HAVENS,  Agents, 

P.  S. — Be  very  particular  in  strictly  prohibiting  any  plunder  or  depre- 
dations on  neutrals  or  other  vessels. 


CONVENTION  FOR  THE  PAYMENT  AND  SETTLEMENT  OF  CER- 
TAIN CLAIMS  OF  AMERICAN  CITIZENS  AGAINST  PORTUGAL, 

BETWEEN 

THE  UNITED   STATES  OF  AMERICA  AND  THE  QUEEN  OF 
PORTUGAL. 

A    PBOOL AMAT10N* 

WHEBEAS  a  Convention  between  the  United  States  of  America  and 
Her  Most  Faithful  Majesty  the  Queen  of  Portugal  and  of  the  Algarves, 
was  concluded  and  signed  by  their  Plenipotentiaries,  on  the  twenty-sixth 
day  of  February,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
fifty-one,  which  Convention,  being  in  the  English  and  Portuguese  lan- 
guages, is  word  for  word  as  follows : 

The  United  States  of  America  and  Her  Most  Faithful  Majesty,  the  Queen 
of  Portugal  and  of  the  Algarves,  equally  animated  with  the  desire  to 
maintain  the  relations  of  harmony  and  amity  which  have  always  existed, 
and  which  it  is  desirable  to  preserve  between  the  two  Powers,  having 
agreed  to  terminate,  by  a  Convention,  the  pending  questions  between 
their  respective  Governments,  in  relation  to  certain  pecuniary  claims  of 
American  citizens,  presented  by  the  Government  of  the  United  States 
against  the  Government  of  Portugal,  have  appointed  as  their  Plenipoten- 
tiaries for  that  purpose,  to  wit,- 

The  President  of  the  United  States  of  America,  Daniel  "Webster,  Secre- 
tary of  State  of  said  Umted  States,  and 

Her  Most  Faithful  Majesty,  J.  0.  de  FiganieTe  6  Morao,  of  Her  Council, 
Knight  Commander  of  the  Orders  of  Christ,  and  of  0.  L.  of  Conception 
of  Yilla  Vicoza  and  Minister  Resident  of  Portugal  near  the  Government 
of  the  United  States— 


228  APPENDIX.- 

Who,  after  having  exchanged  their  respective  full  powers,  found  to  be 
in  due  and  proper  form,  have  agreed  upon  and  concluded  the  following 
articles : 

ARTICLE  I. 

Her  Most  Faithful  Majesty,  the  Queen  of  Portugal  and  of  the  Algarves, 
appreciating  the  difficulty  of  the  two  Governments  agreeing  upon  the 
subject  of  said  claims,  from  the  difference  of  opinion  entertained  by  them 
respectively,  which  difficulty  might  hazard  the  continuance  of  the  good 
understanding  now  prevailing  between  them,  and  resolved  to  maintain 
the  same  nnimpared,  has  assented  to  pay  to  the  Government  of  the  United 
States  a  sum  equivalent  to  the  indemnities  claimed  for  several  American 
citizens  (with  the  exception  of  that  mentioned  in  the  fourth  article)  and 
which  sum  the  Government  of  the  United  States  undertakes  to  receive 
in  full  satisfaction  of  said  claims,  except  as  aforesaid,  and  to  distribute 
the  same  among  the  claimants. 

ARTICLE   II. 

The  high  contracting  parties,  not  being  able  to  come  to  an  agreement 
upon  the  question  of  public  law  involving  in  the  case  of  the  American 
privateer  brig  "  General  Armstrong,"  destroyed  by  British  vessels  in  the 
waters  of  the  Island  of  Fayal  in  September,  1814,  Her  Most  Faithful 
Majesty  has  proposed,  and  the  United  States  of  America  have  consented, 
that  the  claim  presented  by  the  American  Government  in  behalf  of  the 
captain,  officers,  and  crew  of  the  said  privateer,  should  be  submitted  to 
the  arbitrament  of  a  sovereign,  potentate,  or  chief  of  some  nation  in 
amity  with  both  the  high  contracting  parties. 

ARTICLE  m, 

So  soon  as  the  consent  of  the  sovereign,  potentate,  or  chief  of  some 
friendly  nation,  who  shall  be  chosen  by  the  two  high  contracting  par- 
ties, shall  have  been  obtained  to  aet  as  arbiter  in  the  aforesaid  ease  of 
the  privateer  brig  "  General  Armstrong,"  copies  of  all  correspondence 
which  has  passed  in  reference  to  said  claim  between  the  two  Govern- 
ments and  their  respective  representatives,  shall  be  laid  before  the  arbite^ 
to  whose  decision  the  two  high  contracting  parties  hereby  bind  them- 
selves  to  submit. 


APPENDIX.  229 

ABTIOLE  IV. 

iw.  ,..,,. 

The  pecuniary  indemnities  which  Her  Most  Faithful  Majesty  promises 
to  pay,  or  cause  to  be  paid,  for  all  the  claims  presented  previous  to  the  6th 
•day  of  July,  1850,  in  behalf  of  American  citizens,  by  the  Government  of  the 
United  States  (with  the  exception  of  that  of  the  "  General  Armstrong,") 
are  fixed  at  ninety-one  thousand  seven  hundred  and  twenty-seven  dol- 
lars, in  accordance  with  the  correspondence  between  the  two  Govern- 
ments. 

ARTICLE  V. 

The  payment  of  the  sum  stipulated  in  the  preceding  article  shall  be 
made  in  Lisbon  in  ten  equal  installments,  in  the  course  of  five  years,  to 
the  properly-authorized  agent  of  the  United  States,  The  first  installment 
of  nine  thousand  one  hundred  and  seventy-two  dollars,  seventy  cents, 
with  interest,  as  hereinafter  provided,  {or  its  equivalent  in  Portuguese 
current  money)  shall  be  paid,  as  aforesaid,  on  the  30th  day  of  September 
of  the  current  year  of  1851,  or  earlier,  at  the  option  of  the  Portuguese 
Government ;  and  at  the  end  of  every  subsequent  six  months  a  like  install- 
ment shall  be  paid ;  the  integral  sum  of  ninety-one  thousand  seven  hun- 
dred and  twenty-seven  dollars,  or  its  equivalent,  thus  to  be  satisfied  on 
or  before  the  thirtieth  day  of  September,  1856. 

AETIOLB  VI. 

It  is  hereby  agreed  that  each  and  all  of  the  said  installments  are  to 
bear,  and  to  be  paid  with,  an  interest  of  six  per  cent,  per  annum,  from 
the  date  of  the  exchange  of  the  ratifications  of  the  present  Convention, 

ARTICLE  vn. 

This  Convention  shall  be  approved  and  ratified,  and  the  ratifications 
shall  be  exchanged  in  the  city  of  Lisbon  within  four  months  after  the 
date  thereof,  or  sooner  if  possible. 

In  testimony  whereof,  the  respective  Plenipotentiaries  have  signed  the 
same,  and  affixed  thereto  the  seals  of  their  arms. 

Done  in  the  city  of  "Washington,  D.  0.,  the  twenty-sixth  day  of  Feb- 
ruary, of  the  year  of  our  Lord  one  thousand  eight  hundred  and  fifty- 
one. 

\t.  s.]  DAN'L  WEBSTEB, 

[t.  fl.]  «  J.   C.   DE  FlGANIJiBK  6   MOKAO. 


230  APPENDIX. 

And  whereas  the  said  Convention  has  been  duly  ratified  on  both  parta, 
and  the  respective  ratifications  of  the  same  were  exchanged  at  Lisbon  on 
the  twenty-third  day  of  June,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  fifty-one,  by  Charles  B.  Haddock,  Charge  d' Affaires  of  the 
United  States  near  the  Government  of  Her  Most  Faithful  Majesty,  and 
Antonio  Aluizo  Jervis  d'  Atouguia,  Minister  of  State  for  Foreign  Affairs 
of  her  said  Majesty,  on  the  part  of  their  respective  Governments ; 

Now,  therefore,  be  it  known,  that  I,  Millard  Fillmore,  President  of  the 
United  States  of  America,  have  caused  the  said  Convention  to  be  made 
public,  to  the  end  that  the  same,  and  every  clause  and  article  thereof, 
may  be  observed  and  fulfilled  with  good  faith  by  the  United  States  and 
the  citizens  thereof.  In  witness  whereof,  I  have  hereunto  set  my  hand, 
and  caused  the  seal  of  the  United  States  to  be  affixed. 

Done  at  the  city  of  Washington  this  first  day  of  September,  in 

[L.  B.]  the  year  of  our  Lord  one  thousand  eight  hundred  and  fifty- 
one,  and  in  the  seventy-sixth  year  of  the  Independence  of 
the  United  States. 

MTTJ.ART>  FlLLMOBB, 

By  the  President : 

WM.  S.  DEBBIOK,  Acting  Secretary  of  State. 

Concluded  2Qth  February,  1851.  Ratified  Wth  March,  1851.  Rati- 
fication Exchanged  2Sd  June,  1851.  Proclaimed,  1st  September,  1851. 


MESSAGE  FROM  THE  PRESIDENT  OF  THE  UNITED  STATES, 

COMMUNICATING, 

In    compliance   with    a  resolution   of  the    Senate,  the  Award  of  the 

Emperor  of  France  in  the  case  of  Brig  General  Armstrong.* 
JANUARY  24,  1853. — Ordered  to  lie  on  the  table,  and  be  printed. 
To  the  Senate  of  the  United  States : — 

In  answer  to  the  resolution  of  the  Senate  of  the  14th  instant,  rela- 
tive to  the  award  of  the  Emperor  Louis  Napoleon,  of  France,  in  the  case 
of  the  brig  General  Armstrong,  I  transmit  a  report  from  the  Secretary 
of  State  and  the  documents  by  which  it  was  accompanied. 

WABHIHQTOK,  January  24,  1858. 

*  Ex.  Doc.  of  Sen.  No.  24,  2  Sess.  82  Congress. 


APPENDIX.  231 

DEPARTMENT  or  STATE.         ) 
WASHINGTON,  January  21,  1858.    J 

SIB  :  The  Secretary  of  State,  to  whom  has  been  referred  the  resolu- 
tion of  the  Senate  of  the  14th  instant,  requesting  the  President  to 
"  communicate  to  the  Senate,  if  not  incompatible  with  the  public  inter- 
est, the  award  of  the  Emperor  Louis  Napoleon,  of  France,  upon  the 
claim  of  the  owners  of  the  brig  General  Armstrong  against  the  govern- 
ment of  Portugal,  together  with  any  correspondence  upon  that  subject 
not  heretofore  communicated  to  Congress  "  has  the  honor  to  lay  before 
the  President  a  copy  of  a  dispatch  of  the  13th  ultimo,  addressed  to  this 
department  by  Mr.  Rives,  the  United  States  Minister  at  Paris,  and  also  a 
translation  of  the  award  of  the  Emperor  of  France,  to  which  it  refers. 

Respectfully  submitted : 

EDWA.BD  EVKBETT. 
To  the  PBESIDKNT  OF  THE  UNITED  STATES. 


Mr.  Rives  to  Mr.  Everett. 

LBGATION  OF  THB  UHITID  STATM. 
PARIS,  December  18,  1862. 

SIB  :  I  enclose  herewith  the  copy  of  a  letter  addressed  to  me  by  the 
Minister  of  Foreign  Affairs,  on  the  10th  instant,  together  with  a  copy 
of  my  answer.  In  pursuance  of  the  request  of  the  Minister,  and  the 
terms  of  my  answer,  I  called  at  the  Department  of  Foreign  Affairs,  on 
the  llth  instant,  at  the  hour  named,  and  found  the  Minister  of  Portugal 
already  there.  The  Minister  of  Foreign  Affairs  was  absent  at  the 
moment  of  our  arrival,  having  been  sent  for  by  the  Emperor :  but  return- 
ing soon  afterwards,  he  immediately  invited  us  into  his  cabinet. 

He  commenced  the  interview  by  repeating  what  he  had  already  said 
to  me,  and  which  I  reported  to  you  in  my  last  dispatch,  that  the  Presi- 
dent of  the  republic  was  so  incessantly  occupied  by  the  many  and 
important  questions  incident  to  the  late  change  of  government  here,  that 
it  was  entirely  out  of  his  power  to  invite  us  to  call  upon  him  before 
the  consummation  of  that  change,  as  he  intended  to  do,  in  order  that  he 
might  deliver  to  us  personally  his  award  in  the  case  of  the  "  General 
Armstrong."  The  Minister  then  proceeded  to  say  that,  as,  in  the  present 
state  of  things,  the  Emperor  could  not  regularly  invite  us  to  an  audience, 
as  we  had  not  yet  received  our  new  letters  of  credence,  he  had  deemed 


232  APPEDDIX. 

it  proper,  rather  than  incnr  any  farther  delay,  to  depute  him,  the  Min- 
ister of  Foreign  Affairs,  to  deliver  to 'us,  in  his  name,  the  award  pro- 
nounced by  him,  as  President  of  the  republic,  in  the  case  submitted  to 
his  arbitrament  by  our  respective  governments.  Having  in  my  answer  to 
the  note  of  the  Minister  of  Foreign  Affairs,  stated  that,  under  existing 
circumstances,  I  had  no  power  but  to  transmit  the  document  in  question 
to  my  government,  I  thought  it  proper  simply  to  repeat  that  remark. 

The  Minister  of  Foreign  Affairs  then  handed  to  me  the  document 
which  I  have  now  the  honor  to  transmit  to  you,  signed  by  the  President 
of  the  republic  on  the  30th  day  of  November  last,  as  his  award  in  the 
case  of  the  "  General  Armstrong,"  placing  a  similar  one,  at  the  same 
time,  in  the  hands  of  the  Minister  of  Portugal. 

It  may  not  be  improper  for  me  to  add  that  I  had  never  received  from 
any  quarter  any  intimation  of  the  nature  of  the  decision  rendered ;  nor 
did  the  Minister  of  Foreign  Affairs,  in  the  interview  above  mentioned, 
make  the  slightest  allusion  to  its  bearing  on  the  one  side  or  the  other. 
He  only  said,  in  general  terms,  that  the  President  had  examined  the 
whole  subject  with  great  care  and  attention,  and  with  an  earnest  desire 
to  render  justice  to  both  parties,  according  to  the  facts  and  principles 
involved  in  the  controversy. 

I  have  the  honor  to  be,  with  great  respect,  your  most  obedient  ser- 
vant, W.  0.  KrvBS. 

[Translation.] 

Mr.  Drouyn  de  ISHuya  to  Mr.  Rivet. 

DEPARTMENT  or  FOREIGN  AFFAIRS,  ) 
PARIS,  November,  29,  1852.       ) 

SIR  :  I  have  the  honor  to  inform  you  that  the  arbitral  decision  asked 
of  the  Prince  President  by  the  government  of  the  United  States,  and 
that  of  her  most  faithful  Majesty,  upon  the  claim  relative  to  the  Ameri- 
can privateer,  the  "  General  Armstrong,"  has  just  been  rendered,  and 
that  the  Prince  President  will  immediately  invite  you  to  wait  on  him, 
in  order  to  deliver  to  you,  at  the  same  time  with  the  Minister  of  Portu- 
gal, the  document  containing  the  decision. 

I  avail  myself  of  this  occasion  to  renew  to  you  the  assurance  of  the 
high  consideration  with  which  I  have  the  honor  to  remain,  sir,  your  very 

humble  and  obedient  servant, 

DEOTJTN  DE  L'Hurs. 


APPENDIX.  233 

[Translation.] 

Mr.  Drouyn  de  DHuys  to  Mr.  Rives. 

DEPARTMENT  OF  FOREIGN  AFFAIRS.  ) 
Paris,  December  10th,  1852.     J 

SIE  :  I  had  the  honor  of  apprising  you,  under  date  of  the  29th  of  last 
month,  that  the  arbitral  decision  relative  to  the  American  privateer 
"General  Armstrong,"  had  just  heen  rendered.  I  informed  you,  at  the 
same  time,  that  you  would  immediately  receive  the  document  containing 
said  decision. 

Circumstances  not  having  permitted  the  Emperor  to  invite  you  to  wait 
on  him  as  he  had  intended,  he  has  done  me  the  honor  of  deputing  me 
to  deliver,  in  his  name,  to  the  representatives  of  the  two  nations  inter- 
ested in  the  matter,  the  two  documents  destined  for  their  respective  gov- 
-nments. 

''ch  is  the  object  which  prompts  me  to  request,  sir,  that  you  will  have 
^indness  to  call  at  the  Department  of  Foreign  Affairs  on  Saturday 
next,  at  three  o'clock,  if  that  day  suits  your  convenience. 

You  will  find  in  my  cabinet  the  minister  of  Portugal,  whom  I  have 
invited  to  be  present  at  this  interview,  and  I  will  have  the  honor  of 
delivering  into  your  hands,  respectively,  the  decision  rendered  on 
the  subject  of  the  difference  which  has  existed  between  the  govern- 
ment of  the  United  States  of  America  and  that  of  her  most  faithful 
Majesty. 

I  avail  myself  of  this  occasion  to  renew  to  you  the  assurance  of  the 
high  consideration  with  which  I  have  the  honor  to  remain,  sir,  your  very 

humble  and  obedient  servant, 

DBOTTYN  DE  L'HTJYS. 


Mr.  Rives  to  Mr.  Drouyn  de  L'Euyg. 

LEGATION  OP  THB  UNITED  STATES,  ) 
Paris,  December  llth,  1862.     ) 

MONSIEUR  LE  MINISTEE  :  I  had  the  honor  to  receive  the  note  which  your 
excellency  addressed  to  me,  under  the  date  of  the  29th  ultimo,  informing 
me  that  the  Prince  President  of  the  republic  would  invite  me  immediately 
to  wait  on  him,  that  he  might  deliver  to  me,  at  the  same  time  with  the 
Minister  of  Portugal,  the  decision  rendered  by  him  in  the  case  of  t&e 


234  APPENDIX. 

privateer  "General  Armstrong,"  submitted  to  his  arbitrament  by  the 
governments  of  the  United  States  and  of  Portugal.  In  consequence  of 
your  excellency's  communication,  I  held  myself  constantly  ready,  as  I 
had  the  honor  to  inform  your  excellency,  to  obey  the  invitation  of  which 
you  gave  me  notice  the  moment  it  should  be  received. 

I  have  now  the  honor  to  acknowledge  the  receipt  of  your  excellency's 
note  of  yesterday,  informing  me  that  circumstances  not  having  permitted 
the  invitation  to  be  addressed  to  me,  of  which  you  gave  me  notice  by 
your  communication  of  the  29th  ultimo,  the  Emperor  had  designated 
you  to  deliver,  in  his  name,  to  the  representatives  of  the  United  States 
and  Portugal,  the  two  acts  destined  for  their  respective  governments, 
and  requesting  me  to  come  to  the  Department  of  Foreign  Affairs  at  three 
o'clock  to-day,  to  receive  that  intended  for  the  government  of  the  United 
States. 

I  will  do  myself  the  honor,  in  conformity  to  your  excellency's 
request,  to  call  at  the  Department  of  Foreign  Affairs  to-day,  at  the  hour 
named  by  you,  to  receive  for  transmission  to  my  government,  having  no 
other  authority  in  the  matter  under  existing  circumstances,  the  important 
document  you  propose  to  put  into  my  hands  to  be  communicated  to  it. 

I  have  the  honor  to  be,  with  sentiments  of  high  consideration,  your 

excellency's  most  obedient  servant, 

W.  0.  RIVES. 


TRANSLATION  OF  THE  AWAED    OP    PBE8IDKNT    NAPOLEON  IN  THE  CASE  OT 
THE    "  GENERAL   ARMSTRONG." 

We,  Louis  Napoleon,  President  of  the  Frencli  Republic : 
The  Government  of  the  United  States,  and  that  of  her  majesty  the 
Queen  of  Portugal  and  of  the  Algarves,  having,  by  the  terms  of  a  con- 
vention signed  at  Washington  on  the  26th  of  February,  1851,  asked  us 
to  pronounce  as  arbiter  upon  a  claim  relative  to  the  American  privateer 
"  General  Armstrong,"  which  was  destroyed  in  the  port  of  Fayal  on 
the  27th  of  September,  1814 ;  after  having  caused  ourself  to  be  correctly 
and  circumstantially  informed  in  regard  to  the  facts  which  have  been  the 
cause  of  the  difference,  and  after  having  maturely  examined  the  docu- 
ments duly  signed  in  the  name  of  the  two  parties,  which  have  been  sub- 
mitted to  our  inspection  by  the  representatives  of  both  powers,  consider- 
ing that  it  is  clear,  in  fact,  that  the  United  States  were  at  war  with  her 


APPENDIX.  235 

Britannic  majesty,  and  her  most  faithful  majesty  preserving  her  neu- 
trality, the  American  brig,  the  "  General  Armstrong,"  commanded  by 
Captain  Eeid,  legally  provided  with  letters  of  marque,  and  armed  for 
privateering  purposes,  having  sailed  from  the  port  of  New  York,  did,  on 
the  26th  of  September,  1814,  cast  anchor  in  the  port  of  Fayal,  one  of 
the  Azores  Islands,  constituting  part  of  her  most  faithful  majesty's 
dominions ; 

That  it  is  equally  clear  that,  on  the  evening  of  the  same .  day,  an 
English  squadron,  commanded  by  Commodore  Lloyd,  entered  the  samo 
port; 

That  it  is  no  less  certain  that  during  the  following  night,  regardless  of 
the  rights  of  sovereignty  and  neutrality  of  her  most  faithful  majesty,  a 
bloody  encounter  took  place  between  the  Americans  and  the  English ; 
and  that,  on  the  following  day,  the  27th  of  September,  one  of  the  vessels 
belonging  to  the  English  squadron  came  to  range  herself  near  the 
American  privateer  for  the  purpose  of  cannonading  her;  that  this 
demonstration,  accompanied  by  the  act,  determined  Captain  Reid,  fol- 
lowed by  his  crew,  to  abandon  his  vessel,  and  to  destroy  her ; 

Considering  that  if  it  be  clear  that,  on  the  night  of  the  26th  of  Sep- 
tember, some  English  long-boats,  commanded  by  Lieutenant  Eobert 
Fausset,  of  the  British  navy,  approached  the  American  brig,  the  "  Gene- 
ral Armstrong,"1  it  is  not  certain  that  the  men  who  manned  the  boats 
aforesaid  were  provided  with  arms  and  ammunition ; 

That  it  is  evident,  in  fact,  from  the  documents  which  have  been  exhi- 
bited, that  the  aforesaid  long-boats,  having  approached  the  American 
brig,  the  crew  of  the  latter,  after  having  hailed  them  and  summoned 
them  to  be  off,  immediately  fired  upon  them,  and  that  some  men  were 
killed  on  board  the  English  boats,  and  others  wounded — some  of  whom 
mortally — without  any  attempt  having  been  made  on  the  part  of  the 
crew  of  the  boats  to  repel  at  once  force  by  force ; 

Considering  that  the  report  of  the  Governor  of  Fayal  proves  that  the 
American  captain  did  not  apply  to  the  Portuguese  government  for  pro- 
tection until  blood  had  already  been  shed,  and,  when  the  fire  had  ceased, 
the  brig  "  General  Armstrong  "  came  to  anchor  under  the  castle  at  a 
distance  of  a  stone  throw ;  that  said  governor  states,  that  it  was  only 
then,  that  he  was  informed  of  what  was  passing  in  the  port ;  that  he 
did,  on  several  occasions,  interpose  with  Commodore  Lloyd,  with  a  view 


236  APPENDIX. 

of  obtaining  a  cessation  of  hostilities,  and  to  complain  of  the  violation  of 
a  neutral  territory ; 

That  he  effectively  prevented  some  American  sailors,  who  were  on 
land,  from  embarking  on  board  the  American  brig  for  the  purpose  of 
prolonging  a  conflict  which  was  contrary  to  the  law  of  nations ; 

That  the  weakness  of  the  garrison  of  the  island,  and  the  constant  dis- 
mantling of  the  forts,  by  the  removal  of  the  guns  which  guarded  them, 
rendered  all  armed  intervention  on  his  part  impossible1 ; 

Considering,  in  this  state  of  things,  that  Captain  Reid,  not  having 
applied  from  the  beginning  for  the  intervention  of  the  neutral  sovereign, 
and  having  had  recourse  to  arms  in  order  to  repel  an  unjust  aggression 
of  which  he  pretended  to  be  the  object,  has  thus  failed  to  respect  the 
neutrality  of  the  territory  of  the  foreign  sovereign,  and  released  that 
sovereign  of  the  obligation  in  which  he  was,  to  afford  him  protection  by 
any  other  means  than  that  of  a  pacific  intervention ; 

From  which  it  follows  that  the  government  of  her  most  faithful 
majesty  cannot  be  held  responsible  for  the  results  of  the  collision  which 
took  place  in  contempt  of  her  rights  of  sovereignty,  in  violation  of  the 
neutrality  of  her  territory,  and  without  the  local  officers  or  lieutenants 
having  been  required  in  proper  time,  and  enabled  to  grant  aid  and  pro- 
tection to  those  having  a  right  to  the  same ; 

Therefore,  we  have  decided,  and  we  declare,  that  the  claim  presented 
by  the  government  of  the  United  States  against  her  most  faithful 
majesty  has  no  foundation,  and  that  no  indemnity  is  due  by  Portugal  in 
consequence  of  the  loss  of  the  American  brig,  the  "  General  Armstrong," 
armed  for  privateering  purposes. 

Done  and  signed  by  duplicate,  under  the  seal  of  State,  at  the  palace 
of  the  Tuileries,  on  the  thirtieth  day  of  the  month  of  November,  in  the 
year  of  grace  one  thousand  eight  hundred  and  fifty-two. 

[L-  s.]  L.  NAPOLBON. 


LIST  OF  DOCUMENTS  BEAD  IN  EVIDENCE. 

FIE8T   SERIES,    1814. 

Capt.  Reid's  Protest,  Sen.  Doc.  14,  29th  Cong.  1st  Sess.,  p.  4. 
Letter  of  John  B.  Dabney,  U.  S.  consul  at  Fayal,  to  the  Secretary  of 
State.    In  Am.  State  Papers,  volume  "  Naval  Affairs,"  p.  494. 


APPENDIX.  237 

Capt.  Reid's  letter,  ibid.  495. 

Mr.  Dabney  to  the  Governor  of  the  Azores.  In  Sen.  Doc.  No.  14, 
29th  Cong.,  1st  Sess.,  p.  16,  marked  "No.  1." 

The  Governor  of  the  Azores  to  the  commander  of  the  British  forces, 
44  No.  2,"  ibid.  p.  17. 

The  commander  of  the  British  sqtiadron  to  the  Governor  of  the 
Azores.  "  No.  3,"  ibid. 

The  Governor  of  the  Azores  to  the  commander  of  the  British  forces 
"No.  4,"  p.  18,  ibid. 

Same  to  the  Same.    Hid.,  "  No.  6." 

The  British  consul  to  the  Governor  of  the  Azores,  "  No.  6,"  ibid., 
p.  19. 

The  Governor  of  the  Azores  to  Sefior  Acevedo,  the  Minister  of  State 
of  Portugal.  Ibid.,  p.  12. 

Mr.  Dabney  to  the  Governor  of  Fayal.    P.  4,  ibid. 

The  Governor  of  the  Azores  to  the  Minister  of  State  of  Portugal. 
Ibid,  p.  19. 

The  Marquis  de  Aguiar  to  Mr.  Sumpter.    Ibid.,  p.  22. 

The  Same  to  Lord  Strangford.    Ibid.,  p.  21. 

Mr.  Sumpter's  reply  to  Marquis  de  Aguiar.    Ibid.,  p.  7. 

SECOND  8EBIE8,  1815  TO  1818.  f, 

Mr.  Monroe  to  Mr.  Sumpter.    Ibid.,  p.  20.    1815. 

Mr.  Sumpter  to  Mr.  Monroe.    Hid.,  p.  23.        " 

Reports  of  the  Naval  Committee  of  the  Senate  of  the  U.  8.,  January, 
1817. 

Mr.  John  Quincy  Adams  to  the  Chevalier  de  Serra,  1818.  In  Ex. 
Doc.  53,  H.  of  Rep.,  32d  Congress,  1st  Sess.,  p.  13. 

A  period  of  sixteen  years  here  intervenes,  and  the  case  is  prosecuted 
from  Mr.  Monroe's  administration,  without  a  knowledge  of  Portugal's 
admission,  and  the  proceedings  had  at  Rio  Janeiro. 

THIBft  8EBIE8,   1834  TO  1854. 

Mr.  Louis  McLane  to  Capt.  Reid.    Sen.  Doc.  14,  p.  28.    1884. 
Mr.  Dickens  to  Mr.  Kavanagh.    Ibid.,  p.  23.    1835. 


238  APPENDIX. 

Mr.  Kavanagh  to  Mr.  Forsyth.    Sen.  Doc.,  14,  p.  29.    1836.    P.  84, 
two  letters.     1837. 

Same  to  the  Same.    Ibid.,  p.  36.    1838. 

Same  to  the  Same,  grounds  of  refusal  by  Portugal.    Ibid.,  p.  30.  1837. 

Same  to  the  Same,  "  "  "     p.  33.     " 

Mr.  Forsyth  to  Mr.  Reid,  continued  claim.    Ibid.,  p.  37.    1840. 

Mr.  Webster  to  Mr.  Barrow,  in  instructions.    Ibid.,  p.  40.    1842. 
"  Mr.  Reid.  Ibid.,  p.  40.    1842. 

Mr.  Barrow  to  Mr.  Webster.          "     p.  41.        " 
"  Duke  of  Terceira.  "     p.  41.        " 

Mr.  Webster  to  Mr.  Barrow.          "     p.  42.        " 

Fletcher  Webster  to  Mr.  Reid.       "     p.  43.        " 

Mr.  Reid  to  F.  Webster,  calls  attention  to  proceedings  at  Rio.    Ibid., 
p.  43.    1842. 

De  Castro  to  Mr.  Barrow.    Ibid.,  p.  46. 

Mr.  Barrow  to  Mr.  Webster.    Ibid.,  p.  47.    1843. 

Mr.  Barrow  to  Mr.  Upshur.        "      p.  48.        " 

De  Castro  to  Mr.  Barrow,  final  answer  and  refusal  of  Portugal.    Ibid. 
p.  60.    1843. 

Mr.  Reid  to  Mr.  Upshur,  urging  a  reply  to  De  Castro's  letter.    Ibid., 
p.  61. 

Mr.  Upshur  to  fc[r.  Reid,  declining  to  prosecute  the  claim  further. 
Ibid.,  p.  54.    1844. 

Mr.  Reid  to  Mr.  Upshur,  urging  the  government  not  to  abandon  the 
claim.    Ibid.,  p.  54. 

Mr.  Reid  to  Mr.  Oalhoun.    Ibid.,  p.  68. 

FOURTH  SERIES,  1846  TO  1850. 

Report  of  the  Committee  on  Foreign  Relations  of  the  U.  S.  Senate, 
made  by  Mr.  Atherton,  19th  May,  1846, 1st  Sesa.  29th  Cong. 

Letter  of  instructions  from  Mr.  Clayton  to  Mr.  Hopkins.    G-,  p.  16, 
Doc.  No.  63,  1st  Sess.  32d  Cong.,  April,  1849. 

Mr.  Hopkins  to  Count  Tojal.    H,  p.  83,  ibid,  (end  of  the  letter),  June, 
1849. 

Mr.  Clayton  to  J.  B.  Gay.    U,  p.  68,  ibid.,  March,  1850. 
vMr.  Clay  to  Count  Tojal,  making  a  peremptory  demand.    V,  p.  69, 
ibid,    June,  1850. 


APPENDIX.  239 

Count  Tojal  to  Mr.  Clay.    Y,  p.  73,  Ho.  Doc.,  No.  63,  proposing  to 
pay  all  the  other  claims,  and  arbitrate  this  case.    July,  1850. 

Letters  showing  proof  of  lonus   in   consideration    of  agreement  to 

arbitrate  ; 

Mr.  Clay  to  Count  Tojal.    Z,  p.  77,  ibid.    July,  1850. 
Count  Tojal  to  Mr.  Clay.    A  A,  p.  79,  ibid.    July,  1850. 
Mr.  Clay  to  Count  Tojal.    B  B,  p.  80,  ibid.    July,  1850. 
Mr  Webster  to  De  Figaniere,  B  B  B,  p.  112,  ibid.    Sept.,  1850. 

Letters  admitting  England's  acknowledgments: 
Count  Tojal  to  Mr.  Hopkins.    I,  p.  33.    Sept.  1849. 
Count  Tojal  to  Mr.  Clay.    L,  p.  51,  ibid.    March,  1850. 
Mr.  Clay  to  Count  Tojal.    M,  p.  54,  ibid.    March,  1850. 
That  Portugal  never  abandoned  this  claim  against  England.    H,  p.  81, 
ibid.    June,  1849. 

Demand  of  correspondence  between  Portugal  and  England  : 
Mr.  Clay  to  Count  Tojal.    K,  p.  46,  ibid,    Nov.  1849. 

Interference  of  England  in  this  negotiation  : 
Count  Tojal  to  Mr.  Clay.  N.,  p.  57,  ibid.  April,  1850. 
Same  to  the  same.  P.,  p.  62,  ibid.  May,  .1850. 

Determination  of  the  President  not  to  arbitrate  this  claim: 
Mr.  Clayton  to  Mr.  Clay.    U,  p.  68.    March,  1850. 
Mr.  Clayton  to  De  Figaniere.    T  T,  p.  97.    April,  1850. 
Same  to  Same.    V  V,  p.  99.    May,  1850. 
Same  to  Same.     No.  22,  p.  180.    May,  1850. 
Same  to  Same,    No.  25,  p.  186.    June,  1850. 
Mr.  De  Figaniere  to  Mr.  Webster,  Z  Z,  p.  110.    Aug.,  1850. 
Mr.  Clayton  to  Mr.  Eeid.    [Private  F.]    June,  1852. 

FIFTH  8KBIES,   1850  TO   1854. 

The  action  of  Mr.  Webster,  who  agreed  to  submit  the  claim  to  arbitra- 
tion, three  days  after  he  became  Secretary  of  State.  See  Mr,  Clayton's 
Speeches,  p.  5, 13,  and  17. 

Mr.  Webster  to  Mr.  Clay.    D  D,  p.  83.    Aug.  1850. 

Mr.  Webster  to  De  Figaniere.    B  B  B,  p.  112.    Sept.,  1850. 


24:0  APPENDIX. 

Captain  Eeid  to  Mr.  Webster.  In  Senate  Speeches,  p.  9.  Aug.  26th 
1850. 

Mr.  Webster  to  Capt.  Keid.  Aug.  29th,  1850.    In  Sen.  Speeches,  p.  7 
Mr.  Keid  to  Mr.  Webster.     Sept.  5,  1850.    Rid. 
Mr.  Webster  to  Mr.  Reid.    Sept.  18th,  1850.    Ibid. 
Mr.  Webster  to  Mr.  Hadduck,   F  F,  p.  84.  Ho.  Doc.,  No.  53.  Feb.,  1851. 
Same  to  Same.    G  G,  ibid.    March,  1861. 

Convention  between  the  United  States  and  Portugal. 
Copy  of  draft  of  Protocol.    June  9,  1851.    [No.  1.] 
Letter  of  Mr.  J.  A.  Thomas  to  Mr.  Phillips.    [No.  2.] 

That  the  proof  of  claimant*  demand  was  limited  to  the  correspondence, 
subsequent  to  that  of  1814. 

Mr.  Webster  to  Mr.  Hadduck.  HH,p.85.  Ho.  Doc.  No.  53.  March,  1851. 

Same  to  Same.    K  K,  p.  86.    Ibid.    July,  1851. 

Mr.  Hadduck  to  Mr.  Webster.    L  L.    Ibid.    July,  1851. 

Argument  of  claimants  refused  to  be  submitted  by  the  Department  of 
State  to  the  arbiter.  [See  Memorial  Ben.  Mis.  Doc.  14, 1  Sess.  33  Cong.] 

Mr.  Keid  to  Mr.  Webster.    July  71&  1851.    [Marked  B.] 

Same  to  Same.    Aug  1,  1851.    [Marked  0.] 

Mr.  Crittenden  to  Mr.  Keid.    Sept.  29th,  1851.    [Marked  D.j 

Mr.  Rives  to  Mr.  Everett,  enclosing  the  award  of  Louis  Napoleon. 
Paris,  Dec.  13,  1852.  Ex.  Doc.  of  Sen.  No.  24,  2  Sess.,  32  Cong. 

Mr.  Reid  to  Mr.  Everett,  Jan.  8th,  1853,  protesting  against  the  award 
of  Louis  Napoleon.  [No.  8.] 

Mr.  Everett,  Secretary  of  State,  to  Mr.  Reid.    [Marked  E.] 

Letter  of  Charles  W.  Dabney,  TJ.  S.  consul  at  Fayal,  to  Wm.  L. 
Marcy,  Secretary  of  State,  May  21st,  1853,  proving  the  fact  that  the 
English  were  the  first  aggressors.  [No.  4.] 

Letter  of  Mr.  Marcy  to  the  President,  December  10th,  1863,  declaring 
the  award  to  be  final  as  to  the  liability  of  Portugal.  See  Sen.  Ex.  Doc. 
No.  7, 1  Sess.  33  Cong. 

The  unanimous  report  of  the  Committee  on  Foreign  Relations  of  the 
Senate,  by  Hon.  John  Slidell.  March  10th,  1854.  No.  157, 1  Sess.  of  33 
Cong. 

The  unanimous  report  on  Foreign  Affairs  of  the  House,  by  Hon.  John 
Perkins,  Jr.  May  29th,  1854.  No.  139.  1  Sess.  of  83  Cong. 


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